Appendix — Saldajeno v. Ishihara Sangyo Kaisha, Ltd.
Supreme Court brief2003
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~ Supreme Court, U.S.
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OL1784 WN 4 2003
@FFICE OF IWE CLERK
Jn The
Supreme Court of the Anited States
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ALBERTO SALDAJENO, et al.,
Petitioners,
Vv.
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
e
; APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
e
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
® EBD 2 ©
2
APPENDIX
TABLE OF CONTENTS
Deutsch v. Turner Corp. ,; 324 F.3d 692 (9th Cir. Mar.
ip BE ciiisinicinlinincscenspensitsabedeninianmintesniibonpianietanirnnsei
Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir.
ee ray, IT inicio encaaleshetiiektsccckadinia iivauebteamiaaadecannigs
In re World War II Era Japanese Forced Labor
Litig., 164 F. Supp. 2d 1160 (N.D. Cal. Sept. 17,
In re World War II Era Japanese Forced Labor
Litig., 164 F. Supp. 2d 1153 (N.D. Cal. Sept. 17,
In re World War II Era Japanese Forced Labor
Litig., 114 F. Supp. 2d 939 (N.D. Cal. Sept. 21,
Tathetyo Cement Corp. v. Superior Court, 66 P.3d
1231, 2003 Cal. LEXIS 2794, 2003 Cal. Daily Op.
POE, SPOS GAGE. DO, BIG) cccsvsvesvesviececsssvsnerisusescsesssons
Tatheiyo Cement Corp. v. Superior Court, 105 Cal.
App. 4th 398, 129 Cal. Rptr. 2d 451 (Cal. App. 2d
a se SE said ba haciedieee persicae tinsantnessiede’
la
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEF TIBOR DEUTSCH, an
individual; JOSEF TIBOR DEUTSCH,
as the survivor of George Deutsch,
Plaintiffs-Appellants,
V.
No. 00-56673
D.C. No.
TURNER CORPORATION, a Delaware | Gy 99.94305-SVW
Corporation with corporate regional
headquarters located in California;
, KITCHELL CORPORATION USA, an
Arizona Corporation authorized to
do business in California; HOCHTIEF
AG, German Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
WOODROW M. HUTCHISON,
Plaintiff-Appellant,
Vs
MITSUBISHI MATERIALS No. 01-17115
CORPORATION; MITSUBISHI D.C. No
MATERIALS USA, a business praca
association purporting to be a CV-00-02165-VRW
California corporation;
MITSUBISHI CORPORATION, a
Japanese business association;
MITSUBISHI INTERNATIONAL
CORPORATION, a business
association purporting to be a
New York corporation;
2a
MITSUBISHI HEAVY INDUSTRIES,
LTD., a Japanese business
association; MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC., a
business association purporting
to be a Delaware corporation,
Defendants-Appellees.
LESTER I. TENNY,
Plaintiff-Appellant,
¥.
MITSUI & Co., LTD., a Japanese
business association; MITSUI & Co
(USA), INC, a business association
purporting to be a New York
Corporation; MITSUI MINING Co
LTD, a Japanese business
association; MITSUI MINING USA
INC, a business association
purporting to be a Delaware corp.,
Defendants-Appellees.
SHIRLEY M. RUBENSTEIN; JULIA E.
STEVENSON; GLEN LEROY,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants,
V.
ISHIHARA SANGYO KAISHA, LTD;
ISHIHARA CORPORATION, a
California corporation, ISK
AMERICAS, INC., a Delaware
corporation,
Defendants-Appellees.
No. 01-17116
D.C. No.
CV-00-02357-VRW
No. 01-17123
D.C. No.
CV-00-03737-VRW
3a
RAYMOND HEIMBUCH; VIVIAN O.
JOHNSON; WILLIAM R. LOWE; SAM
P. BUSE; ALFRED BEREST; EDWIN
F. LINDROS; MICHAEL BIBIN; J. S.
GRAY; KARL WILLIAM HOLT;
NORMAN R. MATTHEWS; DARREL
D. STARK; CARMEL ZIPETO, No. 01-17124
Plaintiffs-Appellants, D.C. No.
v. CV-00-00064-VRW
ISHIHARA SANGYO KAISHA, LTD; a
Japanese business association;
ISHIHARA CORPORATION; ISK AMER-
ICAS, INC., a business association
purporting to be a Delaware
corporation,
Defendants-Appellees.
MELODY SOLIS, individually and
on behalf of a class of persons
similarly situated,
Plaintiff-Appellant,
bis No. 01-17134
NIPPON STEEL CORPORATION, a
Japanese business association; D.C. No.
S CV-00-02359-VRW
NIPPON STEEL TRADING Co., LTD.,
a Japanese business association;
NIPPON STEEL USA INC, a business
association purporting to be a New
York corporation; NIPPON STEEL
TRADING AMERICA,
Defendants-Appellees.
:
4a
HARRY CORRE,
Plaintiff-Appellant,
Vv.
MITSUI & CO. LTD; MITSUI &
COMPANY (USA), INC.; MITSUI
MINING USA INC; MITSUI MINING
Co., LTD.,
Defendants-Appellees.
GARTH G. DUNN
Plaintiff-Appellant,
Vv.
NIPPON STEEL CORPORATION, a
Japanese business association;
NIPPON STEEL USA, a business
association purporting to be a
New York Corp.,
Defendants-Appellees.
and
JAPAN IRON & STEEL, a Japanese
business association; YAWATA IRON
& STEEL, a Japanese business
association; FUJI IRON & STEEL, a
Japanese business association;
MITSUBISHI CORPORATION, a
Japanese business association;
MITSUBISHI SHOJI; SUMITOMO
CORP.; SUMITOMO COMMERCIAL
COMPANY, a Japanese business
association,
Defendants.
No. 01-17155
D.C. No.
CV-00-02690-VRW
No. 01-17157
D.C. No.
CV-00-03239-VRW
~ ic stel
5a
JAMES O. KING,
Plaintiffs-Appellants,
V.
NIPPON STEEL CORP; NIPPON
STEEL USA,
Defendants-Appellees.
No. 01-17160
D.C. No.
CV-99-05042-VRW
PERFECTO LLANZA, on his own
behalf and on behalf of all others
similarly situated, ALBERTO
SALDEJENO; ACELOPIO GALEDO;
GENEROSO JACOB; ERNESTO SANTO
DOMINGO; IMELDA SANTO DOMINGO,
Plaintiffs-Appellants,
,
MITSUI & CO (USA), INC, a business
association; MITSUI MINING Co.,
LTD., a Japanese business
association; MITSUBISHI
CORPORATION; NIPPON STEEL
CORP, a Japanese business
association; NIPPON STEEL USA
INC.,
Defendants-Appellees.
No. 01-17172
D.C. No.
CV-00-03240-VRW
ALBERTO SALDAJENO; ACELOPIO
GALEDO; GENEROSO JACOB,
individually and on behalf of a
class of persons similarly situated;
PERFECTO LLANZA; ERNESTO SANTO
DOMINGO; IMELDA SANTO DOMINGO,
Plaintiffs-Appellants,
Vv.
6a
ISHIHARA SANGYO KAISHA, LTD, a
Japanese business association;
ISHIHARA CORPORATION (USA);
TAIHEIYO CEMENT, a Japanese
- business association; ONODA USA;
KREHA CORPORATION OF AMERICA,
INC.; MITSUI & Co. (USA); SHOWA
DENKO AMERICA, INC.; MITSUI
MINING USA INC; FURUKAWA
ELECTRIC NORTH AMERICA, INC.;
NIPPON SHARYRO USA, INC.;
SUMITOMO HEAVY INDUSTRIES
(USA); NIPPON STEEL USA INC.;
MITSUBISHI INTERNATIONAL
CORPORATION; MITSUBISHI
MATERIALS USA CORPORATION;
MITSUBISHI HEAVY INDUSTRIES
AMERICA, INC.,
Defendants-Appellees.
ERNESTO SANTO DOMINGO,
individually and on behalf of a
class of persons similarly situated;
IMELDA SANTO DOMINGO,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants,
We
ISHIHARA SANGYO KAISHA, LTD; a
Japanese corporation; ISHIHARA
CORPORATION U.S.A., California
corporation,
Defendants-Appellees.
No. 01-17176
D.C. Nos.
CV-00-02960-VRW
CV-00-03240-VRW
CV-00-03828-VRW
No. 01-17177
D.C. No.
CV-00-03828-VRW
7a
MANUEL A. ENERIZ; DEXTER
ENERIZ, Executor of the Estate
of Manuel A. Eneriz,
Plaintiffs-Appellants,
. No. 01-17185
D.C. No.
MITSUI & COMPANY LTD.; MITSUI
& COMPANY (USA), INC.; MITSUI
MINING COMPANY, LTD.; MITSUI
MINING USA INC,
Defendants-Appellees.
CV-00-02691-VRW
RALPH LEVENBERG, on behalf of him-
self and all others similarly situated,
Plaintiff-Appellant,
No. 01-17189
D.C. No.
CV-99-01554-VRW
We
NIPPON SHARYO LTD.; NIPPON
SHARYO USA., INC.,
Defendants-Appellees.
HAROLD W. POOLE, ERNEST LOY;
FRANCIS W. AGNES; ROBERT C.
CLARK; CLARENCE S. KELLOGG,
Plaintiffs-Appellants,
No. 01-17195
NIPPON STEEL CORP, a Japanese D.C. No.
business association; NIPPON STEEL
TRADING Co., LTD., a business asso-
ciation purporting to be a New York
: corporation; NIPPON STEEL TRADING
AMERICA, a business association pur-
porting to be a California corporation,
Defendants-Appellees.
Pe ee
CV-00-02360-VRW
8a
SUK YOON KIM, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,
Vv.
ISHIKAWAJIMA HARIMA HEAVY
INDUSTRIES LTD.; [HI INC.;
SUMITOMO HEAVY INDUSTRIES
LTD.; SUMITOMO HEAVY
INDUSTRIES (USA) INC.,
Defendants-Appellees.
ZHENHUAN MA,
Plaintiff-Appellant,
V.
KAJIMA CORPORATION; KAJIMA
CONSTRUCTION SERVICES, INC.;
KAJIMA DEVELOPMENT
CORPORATION; KAJIMA
ENGINEERING AND CONSTRUCTION,
INC.; KAJIMA INTERNATIONAL, INC.;
KAJIMA U.S.A., INC.,
Defendants-Appellees.
SA SON SIN,
Plaintiff-Appellant,
Vv.
MITSUI & CO, LTD.; MITSUI & Co.
(USA); MITSUI ENGINEERING &
SHIPBUILDING Co., LTD.; PACECO
CORPORATION,
Defendants-Appellees.
No. 01-17197
D.C. No.
CV-99-05303-VRW
No. 01-17201
D.C. No.
CV-01-02592-VRW
No. 01-17203
D.C. No.
CV-00-03242-VRW
9a
RUBEN RESUS; CARLOS CADENILLA,
individually and on behalf of a
class of persons similarly situated,
Plaintiffs-Appellants,
V.
MITSUI & Co. LTD., a Japanese
business association; MITSUI
BUSSAN KAISHA; MITSUI & Co (USA),
INC; MITSUBISHI CORPORATION;
MITSUBISHI INTERNATIONAL
CORPORATION, a business
corporation; MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association; MITSUBISHI
HEAVY INDUSTRIES AMERICA INC.,
a business association; MITSUBISHI
MATERIALS CORPORATION, a
Japanese association; MITSUBISHI
MATERIALS USA CORPORATION, a
business association; SUMITOMO
CoRP., a Japanese business
association; SUMITOMO CORP. OF
AMERICA, a business association;
KUREHA CORPORATION OF AMERICA,
a business association; FURUKAWA
ELECTRIC NORTH AMERICA, INC., a
business association; TAIHEIYO
CEMENT, a Japanese business
association; ONODA USA INC., a
business association; SHOWA
DENKO K K, a Japanese business
association,
Defendants-Appellees.
No. 01-17204
D.C. No.
CV-00-03313-VRW
10a
SHANG-TING SUNG,
Plaintiff-Appellant,
V.
MITSUI & Co, LTD., MITSUI & Co.
(USA); MITSUBISHI CORPORATION;
MITSUBISHI INTERNATIONAL
CORPORATION; MITSUI MINING
Co., LTD.; MITSUI MINING USA INC,
Defendants-Appellees.
RAYMOND WHEELER; ALEC
CHARLES MURPHY; WILLIAM
SCHMITT; HENDRICK ZEEMAN;
TAMMERUS WILLEM CARTER-
VISSCHER; DAVID CLARKE;
WILLEM HENDRIK DE HAAN,
Plaintiffs-Appellants,
Vv.
MITSUI & CoO, LTD., a Japanese
business association; MITSUI &
COMPANY (USA), INC., a business
association; MITSUI MINING
COMPANY, LTD., a Japanese
business association; MITSUI
MINING USA INC; NIPPON STEEL
USA; MITSUBISHI CORPORATION,
MITSUBISHI INTERNATIONAL CORP.;
MITSUBISHI HEAVY INDUSTRIES
AMERICA, INC.; MITSUBISHI
MATERIALS USA CORPORATION;
MITSUBISHI HEAVY INDUSTRIES, LTD.,
Defendants-Appellees.
No. 01-17207
D.C. No.
CV-00-02358-VRW
No. 01-17210
D.C. No.
CV-00-04278-VRW
LD 5 RAAT as dirt Ae Tine Pay D8
lla
JAE SIK CHOE,
Plaintiff-Appellant,
Vv.
NIPPON STEEL CORPORATION;
MITSUBISHI HEAVY INDUSTRIES, LTD.,
Defendants-Appellees.
FRANK A. MENTE; NEVILLE J.
BOOKER, individually and on
behalf of persons similarly situated,
Plaintiffs-Appellants,
V.
MITSUI & Co. LTD, a Japanese
association, aka/Mitsui Bussan
Kaisha; MITSUI MINING COMPANY,
LTD., a Japanese business
association; MITSUI & COMPANY
(USA), INC., a business association;
NIPPON STEEL CORPORATION, a
Japanese corporation; NIPPON
STEEL USA INC., a business
association; MITSUBISHI
CORPORATION, a Japanese business
association; MITSUBISHI MATERIALS
USA CORPORATION; MITSUBISHI
MATERIALS CORPORATION, a
Japanese business association;
MITSUBISHI HEAVY INDUSTRIES,
LTD., a Japanese business
association; MITSUBISHI |
INTERNATIONAL CORPORATION, a
business corporation,
Defendants.
No. 01-17211
D.C. No.
CV-99-05309-VRW
No. 01-17230
D.C. No.
CV-00-03530-VRW
12a
and
MITSUI MINING USA INC, a business
association; MITSUBISHI HEAVY
INDUSTRIES AMERICA INC., a business
association,
Defendants-Appellees.
AIZHU SU, on behalf of himself and
all others similarly situated;
CHUNSHENG TIAN, on behalf of
himself and all others similarly
situated,
Plaintiffs-Appellants,
V.
MITSUBISHI CORPORATION, a
corporation; MITSUBISHI
CORPORATION, a corporation;
MITSUI & Co., LTD., a corporation; ©
MITSUI MINING COMPANY, LTD., a
corporation; MITSUI & COMPANY
(USA), INC., a corporation; MITSUI
MINING USA INC, a corporation,
Defendants-Appellees.
Do GEUN OH; EUNG CHANG LEE; YONG
HAE LEE, individually and on behalf of
a class of persons similarly situated,
Plaintiffs-Appellants,
V.
MITSUI & Co., LTD, a Japanese
business association; MITSui & Co.
(USA), a business association;
MITSUBISHI CORPORATION, a
Japanese business association;
No. 01-17243
D.C. No.
CV-00-03586-VRW
No. 01-17251
D.C. No.
CV-00-03752-VRW
13a
MITSUBISHI CORPORATION, a business
association; MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese business
association; MITSUBISHI HEAVY
_ INDUSTRIES AMERICA, INC., a business
association; MITSUBISHI MATERIALS
CORPORATION, a Japanese business
association; MITSUBISHI MATERIALS
USA CORPORATION, a business
association; NIPPON STEEL CORP, a
Japanese business association; NIPPON
STEEL USA, a business association;
SHOWA DENKO AMERICA, INC., a
business association; SHOWA KoGyo, a
Japanese business association,
Defendants-Appellees.
GLORIA TYLER ALFANO; MADELINE
FELKINS; WARREN CARRINGER;
HOWARD FRIEDMAN, Dr.; RICHARD
GORDON, Maj.; OAKIE DENT PACK, on
behalf of themselves and all others
similarily situated,
Plaintiffs-Appellants,
V.
MITSUI & COMPANY (USA), INC.;
MITSUI MINING COMPANY, LTD.;
MITSUI MINING USA INC; MITSUBISHI
CORPORATION, a corporation;
MITSUBISHI CORPORATION;
MITSUBISHI HEAVY INDUSTRIES
AMERICA INC., a corporation; MITSUBI-
SHI HEAVY INDUSTRIES, LTD., a
corporation,
Defendants-Appellees.
No. 01-17252
D.C. No.
CV-00-04277-VRW .
l4a
H. JOSEPH TERRENCE, aka Joseph
E. Terfansky; FRANKLIN D. GROSS;
FREDERICK M. FULLERTON, JR.;
ERMA L. WEIMER,
Plaintiffs-Appellants,
V.
MITSUI & Co., LTD., a Japanese
business corporation aka Mitsui
Bussan Kaisha; MITSUI & COMPANY
(USA), INC., a business association;
MITSUI MINING USA INC, a business
association; MITSUBISHI
CORPORATION, a Japanese business
association; MITSUBISHI MATERIALS
CORPORATION, a Japanese business
association; MITSUBISHI HEAVY
INDUSTRIES, LTD., a Japanese
business association; MITSUBISHI
MATERIALS USA CORPORATION, a
business association; MITSUBISHI
CORPORATION, a business
association; MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC., a
business association,
Defendants-Appellees.
ARTHUR TITHERINGTON; HENRY
GEORGE BLACKHAM; FERGUS
DUNSMORE MCGHIE, on behalf of
themselves and others similarly
situated,
Plaintiffs-Appellants,
A
No. 01-17260
D.C. No.
CV-00-03648-VRW
No. 01-17265
D.C. No.’
CV-00-02689-VRW
wlibachiad sian RAS Cn wi 0 ee ran aaa NERS a
15a
JAPAN ENERGY CORP, a Japanese
business association; JAPAN ENERGY
USA, a Delaware Corporation;
IRVINE SCIENTIFIC SALES,
a California Corporation
Defendants-Appellees.
FINNIE B PRICE, On behalf of
himself and all others similarly
situated,
Plaintiffs-Appellants,
ve
MITSUBISHI CORPORATION;
MITSUBISHI HEAVY INDUSTRIES,
LTD., a corporation; MITSUBISHI
HEAVY INDUSTRIES AMERICA INC.;
MITSUBISHI INTERNATIONAL
CORPORATION, a corporation;
MITsuI & Co (USA) INC.; MITsUI &
Co. LTD., a corporation; MITSUI
MINING Co LTD; MITSUI MINING
USA INC, a corporation,
Defendants-Appellees.
No. 01-17499
D.C. No.
CV-00-02761-VRW
ORDER
AMENDING
OPINION,
DENYING
PETITIONS FOR
REHEARING AND
REHEARING EN
BANC, AND
HOLDING
MANDATE
OPINION
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
October 7, 2002 — Pasadena, California
Filed January 21, 2003
Amended March 6, 2003
Before: Stephen Reinhardt, Stephen S. Trott and Barry G.
Silverman, Circuit Judges.
Opinion by Judge Reinhardt
16a
COUNSEL
Nate G. Kraut, Law Offices of Nate G. Kraut, Los Angeles,
California, for plaintiff-appellant Josef Tibor Deutsch.
Joseph W. Cotchett, Bruce L. Simon and Steven N. Wil-
liams, Cotchett, Pitre, Simon & McCarthy, Burlingame,
California; Lourdes Santos Tancinco, Tancinco Law Of-
fices, San Francisco, California, for Saldajeno plaintiffs-
appellants.
Michael E. Withey, Strittmatter, Kessler, Whelan, Withey,
Coluccio, Seattle, Washington, for Santa Domingo plain-
tiffs-appellants.
Robert A. Swift, Denis F. Shiels, Nadia Ezzelarab and
Hilary E. Cohen, Kohn, Swift & Graf, Philadelphia,
Pennsylvania; Jon Van Dyke, Honolulu, HI; Scott W.
Wellman, Scott R. Warren and Mitsuruku Ushida,
Wellman & Warren LLP, Irvine, California; Rodrigo C.
Domingo, Domingo & Dizon, Mikati City, Philippines;
Edward D. Fagan, Fagan & Associates, Livingston, New
Jersey; Michael Witti, Law Offices, Munchen, Germany;
Henry Burstyner, Glennen, Burstyner & Co., Melbourne,
Australia, for Resus, Kim, Wheeler, Mente and Terrence
plaintiffs-appellants.
Steven M. Schneebaum, Esq., Patton Boggs, LLP, Wash-
ington DC; Ronald Kleinman, Esq., C. Allen Foster, Esq.,
Joe R. Reeder, Esq. and Jessica Valltos, Esq., Greenberg
Traurig, LLP, Washington, DC; David S. Casey, Jr., Esq.,
Bonnie E. Kane, Esq. and Wendy M. Behan, Esq., Her-
man, Mathis, Casey, Kitchens & Gerel, LLP, San Diego,
California; Maury A. Herman, Esq., Leonard A. Davis,
Esq. and David Fox, Esq., Herman, Mathis, Casey, Kitch-
ens & Gerel, LLP, New Orleans, Louisiana; James W. —
$$ ES RT SL crete
17a
Kitchens, Herman, Mathis, Casey, Kitchens & Gerel, LLP,
Jackson, Mississippi; James W. Parkinson, Esq., Law
Offices of James W. Parkinson, Palm Desert, California;
Michael Goldstein, Esq., Law Offices of Michael Goldstein,
Cardiff, California; Venus Soltan, Esq., Soltan & Associ-
ates, Costa Mesa, California; Attorneys for Poole, Loy,
Agnes, Clark and Kellogg, plaintiffs-appellants. Daniel C.
Girard, Girard, Gibbs & De Bartolomeo, LLP, San Fran-
cisco, California; Anthony K. Lee, San Francisco, Califor-
nia, for King and Levenberg plaintiffs-appellants.
William S. Lerach, Eric A. Isaacson, Frank J. Janecek, Jr.,
Joseph D. Daley and Patrick W. Daniels, Milberg, Weiss,
Bershad, Hynes & Lerach LLP, San Diego, California;
Michael Rubin and Linda Lye, Altshuler, Berzon, Nuss-
baum & Demain, San Francisco, California; Kevin P.
Roddy, Hagens Berman LLP, Los Angeles, California; John
J. Bartko, William I. Edlund and Robert H. Bunzel,
Bartko, Zankel, Tarrant & Miller, San Francisco, Califor-
nia; Albert H. Meyerhoff, Milberg, Weiss, Bershad, Hynes
& Lerach, LLP, Los Angeles, California; Li Yang, Law
Offices of Li Yang, New York, New York; Howard D.
Finkelstein and Jeffrey R. Krinsk, Finkelstein & Krinsk,
San Diego, California; Jonathan W. Cuneo, The Cuneo
Law Group, P.C., Washington, DC; Thomas L. Galloway,
Galloway & Associates, Boulder, Colorado; David R. Scott
and Neil Rothstein, Scott & Scott, LLC, Colchester, Con-
necticut; Henry H. Rossbacher, Rossbacher & Associates,
Los Angeles, California; Attorneys for Kim plaintiffs-
appellants. Steve W. Berman and Jeffrey T. Sprung,
Hagens Berman LLP, Seattle, Washington; Kevin P.
Roddy, Hagens Berman LLP, Los Angeles, California, for
Titherington, Blackham and McGhie plaintiffs-appellants.
18a
Peter I. Ostroff, Mark E. Haddad, Lee L. Auerbach, Ronald
L. Steiner, Sarah J. Heidel, Sidley, Austin, Brown & Wood
LLP, Los Angeles, California, for defendants-appellees
Nippon Sharyo Ltd. and Nippon Sharyo U:S.A., Inc.
John H. Beisner and John F. Niblock, O’Melveny & Meyers
LLP, Washington D.C., for defendants-appellees Mitsubi-
shi Materials Corporation and Mitsubishi Materials
U.S.A. Corporation.
Arne D. Wagner, Morrison & Foerster LLP, for defendants-
appellees Mitsubishi Corporation and Mitsubishi Interna-
tional Corporation.
Matthew Digby, Bingham Dana LLP, for defendants-
appellees Mitsui Mining Co., Ltd., Mitsui Mining 'U.S. A.,
Inc., Nippon Sharyo U.S.A., Inc., Taiheiyo Cement U.S.A.,
Inc., Japan Energy Corporation, Japan Energy U.S.A.,
Furukawa Electric North America, Inc., and Irvine Scien-
tific Sales Co., Inc.
Sara D. Schotland, Cleary, Gottlieb, Steen & Hamilton, for
defendant-appellee Showa Denko America, Inc.
Arthur W. Harrigan, Jr., Danielson, Harrigan & Tollefson,
LLP, for defendants-appellees Mitsubishi Heavy Indus-
tries, Ltd. and Mitsubishi Heavy Industries America, Inc.
Neil A.F. Popovic, Heller, Ehrman, White & Mcauliffe, for
defendant-appellee Showa Denko America, Inc.
Paul Doyle, Kelley, Drye & Warren LLP, for defendant-
appellee Kreha Corporation of America.
Christopher Landau, Kirkland & Ellis, for defendant-
appellee Sumitomo Heavy Industries (U.S.A.) and Sumi-
tomo Heavy Industries, Ltd. —
SP RATNER DA ih IEE OHI Os RE el LET, Lei Fit
HWE» Sta Mie An ah hia
Og Ribot CM
Ae at POG EE a a
19a
Douglas E. Mirell, Loeb & Loeb LLP, for defendants-
appellees Taiheiyo Cement U.S.A., Inc., Furukawa Electric
North America, Inc., Japan Energy Corporation, Japan
Energy (U.S.A.), Inc. and Irvine Scientific Sales Co., Inc.
Junji Masuda, Masuda & Kjiri, for defendant-appellee
Japan Energy Corporation, Japan Energy (U.S.A.), Inc.,
and Irvine Scientific Sales Co., Inc.
David M. Balabanian, Christopher B. Hockett, Thomas S.
Hixson and J. Leah Castella, McCutchen, Doyle, Brown &
Enersen, LLP, San Francisco, California, for defendants-
appellees Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.),
Inc.
Barbara Croutch, Pillsbury Winthrop, LLP, Los Angeles,
California, for defendants-appellees Mitsubishi Heavy
Industries America Inc. and Mitsubishi Heavy Industries,
Ltd. :
- Nathan Lane III and Joseph A. Meckes, Squire, Sanders &
Dempsey LLP, San Francisco, California, for defendants-
appellees Ishihara Corporation (U.S.A.), Ishihara Sangyo
Kaisha, Ltd. and ISK Americas Incorporated.
Margaret K. Pfeiffer, Sullivan & Cromwell, Washington
DC, for defendants-appellees Nippon Steel U.S.A., Inc.,
Nippon Steel Corporation, Nippon Steel Trading America,
Inc. and Nippon Steel Trading Co.; Ltd.
Bruce E.H. Johnson, Davis, Wright, Tremaine, for defen-
dants-appellees Mitsubishi Heavy Industries, Ltd. and
Mitsubishi Heavy Industries America, Inc.
A. Victor Antola, Latham & Watkins, for defendants-
appellees Kajima U.S.A., Inc., Kajima International, Inc.,
Kajima Engineering and Construction, Inc., Kajima
.
20a
Development Corporation and Kajima Construction
Services, Inc.
Lloyd W. Aubry, Jr., Morrison & Foerster, LLP, for defen-
dants-appellees Ishikawajima-Harima Heavy Industries
Co., Ltd. and IHI, Inc.
Cynthia S. Papsdorf and Sheri M. Schwartz, Kelley Drye
& Warren LLP, Les Angeles, California; Bud G. Holman,
Esq., Kelley Drye & Warren LLP, New York, New York, for
defendants-appellees The Turner Corporation and Kitchell
Corporation.
Catherine Z. Ysrael, Supervising Deputy Attorney Gen-
eral, State of California; Bill Lockyer, Attorney General of
California; Manuel M. Medeiros, Solicitor General of
California; Richard M. Frank, Chief Assistant Attorney
General; Louis Verdugo, Jr. and Angela Sierra; For the
State of California as amicus curiae in support of plaintiff-
appellants.
Douglas Hallward-Driemeier, Department of Justice, Civil
Division, appellate Staff; Robert D. McCallum, Assistant
Attorney General; John S. Gordon, United States Attor-
ney; David W. Shapiro, United States Attorney; Mark B.
Stern, Civil Division, appellate Staff; James G. Hergen
and Lara A. Ballard, Department of State, Office of the
Legal Adviser; For the United States as amicus curiae in
support of defendants-appellees.
ORDER
The opinion filed January 21, 2003 is hereby amended
as follows:
i A Sas oUt I a ahg Meh in ts ls Gh
2la
Slip op. at 991, second full paragraph, line 6,
after “because a state is,” insert “generally.”
Slip op. at 991, replace the last sentence (be-
ginning “Because section 354.6 is substantive
law”), including footnote 4, with the follow-
ing:
Nevertheless, that distinction does not affect
the outcome here. Our determination of the
foreign affairs doctrine issue does not depend
on our conclusion that section 354.6 is sub-
stantive law. Whether substantive or proce-
dural, section 354.6 creates a special rule
that applies only to a newly defined class of
tort actions — actions brought by Second
World War slave labor victims against the
entities that enslaved them. This new rule
profoundly alters the likelihood that such ac-
tions will succeed, by not only extending the
statute of limitations for claims that were
timely when the statute took effect (although
we doubt that any such claims existed), but,
far more important, by reviving claims that
were already time-barred. In the latter in-
stance, the statute upset the repose of poten-
tial defendants. Such a revival of liability —
even civil liability — is troubling and raises
serious due process questions. We need not
address those questions here, however. The
important point for our foreign affairs analy-
sis is that the California legisiature created —
or at least resurrected — a special class of tort
actions, with the aim of rectifying wartime
wrongs committed by our enemies or by par-
ties operating under our enemies’ protection.
Immediately following the passage inserted
above (after “under our enemies’ protection”)
22a
add a new footnote containing the following
text:
Two decisions of the California Court of Ap-
peal, one by the Second Appellate District
and one by the Fourth, have recently ad-
dressed whether section 354.6 is substantive
or procedural in nature. The decisions
reached opposite conclusions. Compare Mit-
subishi Materials Corp. v. Superior Court,
No. G030056, slip op. at 2 (Cal. Ct. App. Feb.
6, 2003) (“The legislation actually creates a
state law claim which otherwise would not
exist.... ”) with Taiheiyo Cement Corp. uv.
Superior Court, No. B155736, slip op. at 24
(Cal. Ct. App. Jan. 15, 2003) (“The sole pur-
pose of section 354.6 is to extend the statute
of limitations for common law claims for u1-
paid labor and personal injuries arising out
of slave or forced labor.”). Both decisions
were issued after our opinion was sent to the
Clerk for filing.
4. Slip op. at 1005, replace the first full para-
graph with the following:
Section 354.6 runs afoul of the restriction
on the exercise of foreign affairs powers by the
states. Because California lacks the power to
create a right of action — or, alternatively, to
resurrect time-barred claims — in order to
provide its own remedy for war-related inju-
ries inflicted by our former enemies and those
who operated in their territories, we hold that
section 354.6 is unconstitutional.
With these amendments, the panel has voted unani-
mously to deny the petitions for rehearing and rehearing
en bafic. The full court has been advised of the petitions
saa inimical
ie ~ ee ee ee ee ee
ee rs
oa
23a
for rehearing en banc, and no active judge has requested a
vote on whether to rehear the matter en banc. Fed. R.App.
P. 35. The petitions for rehearing and rehearing en banc
are denied.
The mandate will be held pending a decision in
American Insurance Association v. Low, 123 S. Ct. 817
(2003) (No. 02-722) (granting certiorari).
OPINION
REINHARDT, Circuit Judge:
Plaintiffs-Appellants in these consolidated cases
allege that they were forced to work as slave laborers for
German and Japanese corporations during the Second
World War. They seek damages and other remedies for lost
wages and for other atrocious injuries they suffered in the
course of their forced labor. Defendants-Appellees are
corporations (or successors or affiliates of those corpora-
tions) that allegedly committed these atrocities.
A California statute passed in 1999 creates a cause of
action against such defendants for claims involving Second
World War slave labor.’ Cal. Code Civ. Proc. § 354.6. Under
the statute, these claims are not time-barred if commenced
on or before December 31, 2010. Jd. Although Appellants
assert a variety of statutory and common law claims for
relief, all raise section 354.6 as the primary basis for
’ Although the statute distinguishes between “slave laborers,” see Cal.
Code Civ. Proc. § 354.6(aX1), and “forced laborers,” see § 354.6/aX2), the
distinction is generally immaterial to the analysis in this opinion. We
generally use the term “slave laborer” to refer to both categories of workers.
24a
bringing their suits so many years after the alleged wrongs
were committed. Reluctantly, we hold that section 354.6 is
invalid under the United States Constitution and that in its
absence Appellants’ remaining claims are time-barred.
Background
These cases concern the terrible abuses that German
and Japanese corporate interests inflicted both on civilians
and on soldiers captured by German and Japanese mili-
tary forces during the Second World War. The corporations
and their managers, with the cooperation and encourage-
ment of their governments, subjected many individuals to
vicious cruelties and forced them to work long hours
without pay. The slave workers were often underfed,
physically beaten, exposed to dangerous conditions, and
denied medical care; many were murdered, and others
died as a result of the maltreatment they suffered. Among
these slave laborers were, tragically, many who became
victims of the Holocaust, the most atrocious act ever
perpetrated by a civilized (or uncivilized) people, an act
unparalleled in history. Indeed, the Holocaust represents
the worst historic manifestation of the perpetual human
condition known as antisemitism, a phenomenon that is
still thriving in all too many parts of the world today.’
* It is plainly Holocaust survivors who are the intended beneficiar-
ies of section 354.6, which speaks of “concentration campi/s]” and
“ghettos[s],” [sic] mentions no power by name other than the “Nazi
regime,” and never employs the term “Axis Powers,” which is the usual
collective term for the enemies of the Allied Powers. Ironically, among
the hundreds of thousands of plaintiffs in the cases before us, there is
only one Holocaust survivor. All the other plaintiffs suffered their
(Continued on following page)
25a
I. The Cases
A. Deutsch v. Turner
The suit by Appellant Josef Tibor Deutsch (“Deutsch”)
is the only action before us concerning wrongs committed
by German rather than Japanese corporations and the
only action that was not consolidated with other cases by
the district court. It is, in other words, the only Holocaust
case at issue here, and it, unlike most of the Japanese
cases, involves only a single plaintiff.
Currently a resident of California, Deutsch, a Jew,
was born and raised in Hungary. Deutsch asserts that, in
1944, when he was a child, the Nazis took over his town
and transported him and his brother Georg to Auschwitz.
There the brothers were tortured and forced to work as
slaves for 14-hour days, seven days a week. Their work
was for the benefit of private corporations, which entered
into agreements with the Nazi government, whereby they
paid the Nazis less than the prevailing wage for the work
of the slaves. The corporations for which the Deutsch
children labored included Appellee Hochtief AG (“Ho-
chtief”), one of Germany’s largest and oldest construction
companies. A civilian employee of Hochtief overseeing the
slave laborers in their work for Hochtief beat Deutsch’s
brother Georg. Georg ultimately died from his injuries. By
a stroke of good fortune, Deutsch, unlike most of his co-
religionists, survived.
injuries in Asia at the hands of Japanese companies. Whatever the
intended purpose of the California statute, the text of section 354.6
appears to be broad enough to encompass all the plaintiffs’ claims, and
not just those of the one Holocaust survivor. We follow the district court
and all the parties before us in assuming that such is the case.
26a
On April 7, 2000, Deutsch filed a complaint in the
Superior Court of California against Hochtief, its wholly
owned subsidiary the Turner Corporation, a Delaware
corporation, and the Kitchell Corporation, an Arizona
corporation that Hochtief owns in part. Deutsch alleged
intentional infliction of emotional distress, unlawful
business practices under the California Business and
Professions Code, quantum meruit, and wrongful death.
The action was removed to federal court on the ground of
diversity jurisdiction.
Deutsch’s basis for bringing the action so long after
the alleged acts is section 354.6 of the California Code of
Civil Procedure, which confers jurisdiction on the Superior
Court to hear claims by “[aJny Second World War slave
labor victim” or “Second World War forced labor victim,” or
their heirs, against “any entity or successor in interest
thereof, for whom that labor was performed, either directly
or through a subsidiary or affiliate.” Cal. Code Civ. Proc.
§ 354.6(b). Section 354.6 permits such actions to be
brought on or before December 31, 2010, regardless of any
otherwise applicable statute of limitations. § 354.6(c).
The district court dismissed the action as presenting a
nonjusticiable political question. Deutsch v. Turner, No. CV
00-4405 (C.D. Cal. Aug. 25, 2000).
B. In re World War II Era Japanese Forced La-
bor Litigation
The consolidated appeal before us also involves 28 other
suits, all by victims and heirs of victims against Japanese
business entities. Some were brought as class actions.
Because there are so many complaints, and because the
precise factual allegations do not bear on our decision, we do
+h ne stresits nein
Preueeoere te et
27a
not here recount the details of the injuries that the various
Appellants endured. Unlike Deutsch, these individuals —
some civilians, some soldiers who were prisoners of war —
were not selected because of their religious affiliation and
were not victims of an overall plan to exterminate an ethnic
or religious group. Rather, they became subject to the Japa-
nese slave labor program either because they opposed the
Japanese war efforts, in one capacity or another, or simply
because they were in the wrong place at the wrong time. In
any event, they were all subjected to serious mistreatment,
including starvation, beatings, physical and mental torture,
being transported in unventilated cargo holds of ships, and
being forced to make long marches under a tropical sun
without water. Some survived, while others were ultimately
executed, or died from disease or physical abuse.
Twenty-seven of the suits against the Japanese corpo-
rate interests were originally brought in California Superior
Court, while one was initiated in the United States District
Court for the Central District of California. The claimants
demanded damages and other relief, raising claims under
California Code of Civil Procedure section 354.6, and alleg-
ing, variously, assault and battery, unjust enrichment,
conspiracy, false imprisonment, intentional infliction of
emotional distress, conversion, quantum meruit, unfair
business practices under California Business and Professions
Code sections 17200 et seg., involuntary servitude under
California Penal Code section 181 and Article I, §6 of the
California Constitution, and violations of international law
under the Alien Tort Claims Act, 28 U.S.C. § 1350. As
defendants they name both Japanese corporations that
they allege committed the injuries and successors and
affiliates of those corporations. The suits filed in state court
were removed to federal court; all were then consolidated in
28a
the Northern District of California. The district court
denied motions to remand and dismissed all claims.
Appellants in the majority of the Japanese cases were,
at the time of the occurrences that form the basis for these
lawsuits, nationals of the United States or of other Allied
nations. Many were in military service and were taken as
prisoners of war. The district judge dismissed these cases
on the ground that they were barred by a provision of the
Treaty of Peace ending the war between the Allied Powers
and Japan.’ In re World War II Era Japanese Forced Labor
Litig., 114 F. Supp. 2d 939, 944-49 (N.D. Cal. 2000) (Forced
Labor (Allied I)); In re World War II Era Japanese Forced
Labor Litig., No. MDL-1347 (N.D. Cal. Feb. 8, 2001)
(Forced Labor (Allied II)); In re World War II Era Japanese
Forced Labor Litig., 164 F. Supp. 2d 1153, 1157 (N.D. Cal.
2001) (Forced Labor (Filipinos)).
Appellants in the remaining cases were Korean and
Chinese nationals. The district court held that their claims
were not affected by the Treaty of Peace between the Allies
* The provision that had this effect is Article 14(b), which provides
as follows:
Except as otherwise provided in the present Treaty, the Al-
lied Powers waive all reparations claims of the Allied Pow-
ers, other claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals
in the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation.
Treaty of Peace with Japan, Sept. 8, 1951, art. 14(b), 3 U.S.T. 3169, T.LA.S.
No. 2490. The district court held that claims by Allied nationals agains‘
Japanese corporations were barred under the clause waiving “other claims
of the Allied Powers and their nationals arising out of any actions taken by
Japan and its nationals in the.course of the prosecution of the war.” Forced
Labor (Allied I), 114 F. Supp. 2d at 944-49 (N.D. Cal. 2000).
ian PG Catt TATA Vere NCLB ods ne eer ere es WALA tahieh wie
aaah en
hate alte Mba
29a
and Japan, because these claimants were not Allied nation-
als or nationals of any signatory of that treaty. In re World
War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d
1160, 1165-68 (N.D. Cal. 2001) (Forced Labor (Koreans)). The
court dismissed these cases nonetheless, on the grounds that
section 354.6 was an unconstitutional intrusion on the
foreign affairs powers of the United States, and that the
remaining claims were time-barred. Jd. at 1168-78.
II. Constitutionality of Section 354.6 Under
Foreign Affairs Doctrine
A. Section 354.6 and Its Effect
All Appellants rely on section 354.6 of the California
Code of Civil Procedure. Because it can best be understood
when read as a whole, we quote it in full:
§ 354.6.
(a) As used in this section:
(1) “Second World War slave labor vic-
tim” means any person taken from a concen-
tration camp or ghetto or diverted from
transportation to a concentration camp or
from a ghetto to perform labor without pay
for any period of time between 1929 and
1945, by the Nazi regime, its allies and
sympathizers, or enterprises transacting
business in any of the areas occupied by or
under control of the Nazi regime or its allies
and sympathizers.
(2) “Second World War forced labor
victim” means any person who was a mem-
ber of the civilian population conquered by
the Nazi regime, its allies or sympathizers,
30a
or prisoner-of-war of the Nazi regime, its al-
lies or sympathizers, forced to perform labor
without pay for any period of time between
1929 and 1945, by the Nazi regime, its allies
and sympathizers, or enterprises transact-
ing business in any of the areas occupied by
or under control of the Nazi regime or its al-
lies and sympathizers.
(3) “Compensation” means the present
value of wages and benefits that individuals
should have been paid and damages for in-
juries sustained in connection with the labor
performed. Present value shall be calculated
on the basis of the market value of the ser-
vices at the time they were performed, plus
interest from the time the services were per-
formed, compounded annually to date of full
payment without diminution for wartime or
postwar currency devaluation.
(b) Any Second World War slave labor vic-
tim, or heir of a Second World War slave labor
victim, Second World War forced labor victim, or
heir of a Second World War forced labor victim,
may bring an action to recover compensation for
labor performed as a Second World War slave labor
victim or Second World War forced labor victim
from any entity or successor in interest thereof, for
whom that labor was performed, either directly or
through a subsidiary or affiliate. That action may
be brought in a superior court of this state, which
court shall have jurisdiction over that action until
its completion or resolution.
(c) Any action brought under this cection
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.
3la
Appellants and the State of California as amicus seek
to characterize section 354.6 as a purely procedural
measure by reducing its scope to the provision regarding
the limitations, as set forth in subsection (c). The entire
effect of section 354.6, they argue, is to extend the statute
of limitations for claims that are already available to
remedy Nazi-era slave labor. They cite an impressive
range of possible sources of substantive law prohibiting
slave labor, including state statutes and common law, the
United States Constitution, and international law. The
reference in subsection (c) to “the applicable statute of
limitations” supports their interpretation: If a statute of
limitations is already “applicable,” perhaps it is because
subsection (c) contemplates a pre-existing cause of action,
rather than a cause of action created under section 354.6.
However, section 354.6 can be viewed as purely
procedural only when subsection (c) is viewed in isolation
from the rest of the provision. Most important, the first
sentence of subsection (b) explicitly creates a cause of
action by providing that certain individuals “may bring an
action” for certain wrongs. See Verizon Md. Inc. v. Pub.
Serv. Comm’n, 535 U.S. 635, __, 122 S. Ct. 1753, 1759
(2002) (noting that language in a statute providing that
party “may bring an action” “reads like the conferral of a
private right of action”). Appellants’ recitation of pre-
existing causes of action for slave labor, whether under
other statutes or other bodies of law, is therefore fruitless.
Regardless of any pre-existing law, the California legisla-
ture chose to create a specific cause of action for persons
subjected to slave labor by the Nazis and their allies and
sympathizers. If confirmation of this reading is required, it
is found in those passages of section 354.6 that set forth
the details of the new cause of action. The section defines
32a
the class of plaintiffs who may sue under that cause of
action, see § 354.6(a)(1), (2), sets the method for measuring
damages, see § 354.6(a)(3), and establishes a special rule
regarding liability of corporations affiliated with the wrong-
doer, see § 354.6(b). Even the language of the statute of
limitations provision itself limits the application of the
statute of limitations to “action[s] brought under this sec-
tion,” thus confirming that section 354.6 creates a cause of
action.
Appellants’ only remaining argument for the proce-
dural nature of section 354.6 is its placement within the
Code of Civil Procedure, in Title Two: Time of Commencing
Civil Actions. However, where the meaning of a statutory
provision is clear, we do not rely upon the location the
legislature chose for it in its system of codification, see
Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111
F.3d 1322, 1328 (7th Cir. 1997), just as we do not rely upon
the headings and titles of sections in such circumstances.
Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R.,
331 U.S. 519, 528-29 (1947). The reason for the placement
of section 354.6 within the procedural code is, in any
event, not difficult to explain: The most striking aspect of
the section is, indeed, its statute of limitations, which
would allow the commencement of a suit more than 60
years after the occurrence of the injury. Jd. Section 354.6’s
placement, therefore, does not change our view that the
section is substantive in nature.
The parties debate whether section 354.6 is substan-
tive or procedural primarily in the context of the Appellees’
due process challenge, which we do not address. The
substantive nature of the provision, however, is relevant
also to the foreign affairs doctrine analysis in which we
engage below, because a state is generally more likely to
ee a ee re
33a
exceed the limits of its power when it seeks to alter or
create rights and obligations than when it seeks merely to
further enforcement of alrea.‘y existing rights and duties.
Nevertheless, that distinction does not affect the outcome
here. Our determination of the foreign affairs doctrine
issue does not depend on our conclusion that section 354.6
is substantive law. Whether substantive or procedural,
section 354.6 creates a special rule that applies only to a
newly defined class of tort actions — actions brought by
Second World War slave labor victims against the entities
that enslaved them. This new 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 (although we doubt
that any such claims existed), but, far more important, by
reviving claims that were already time-barred. In the
latter instance, the statute upset the repose of potential
defendants. Such a revival of liability — even civil liability
— is troubling and raises serious due process questions. We
need not address those questions here, however. The
important point for our foreign affairs analysis is that the
California legislature created — or at least resurrected — a
special class of tort actions, with the aim of rectifying
wartime wrongs committed by our enemies or by parties
operating under our enemies’ protection.“
* Two decisions of the California Court of Appeal, one by the
Second Appellate District and one by the Fourth, have recently
addressed whether section 354.6 is substantive or procedural in nature.
The decisions reached opposite conclusions. Compare Mitsubishi
Materials Corp. v. Superior Court, No. G030056, slip op. at 2 (Cal. Ct.
App. Feb. 6, 2003) (“The legislation actually creates a state law claim
which otherwise would not exist.... ”) with Taiheiyo Cement Corp. v.
(Continued on following page)
34a
B. Foreign Affairs Doctrine Analysis
Appellees argue that section 354.6 exceeds California’s
power to engage in foreign affairs. We agree.’
The Constitution does not create an express, general
power over foreign affairs but rather allocates particular
powers related to foreign affairs to particular federal
actors. It appoints the President as “Commander in Chief
of the Army and Navy of the United States,” U.S. Const.,
art. II, § 2, cl. 1, and authorizes him to “make Treaties,
provided two thirds of the Senators present concur,” to
“appoint Ambassadors” with the “Advice and Consent of
the Senate,” id. cl. 2, and to “receive Ambassadors and
other public Ministers,” id. § 3. It grants to Congress the
power to “lay and collect .. . Duties, Imposts, and Excises,”
to “provide for the common Defence,” id. art. I, § 8, cl. 1, to
“regulate Commerce with foreign Nations,” id. art. I, § 8,
cl. 3, to “establish an uniform Rule of Naturalization,” id.
cl. 4, to “define and punish Piracies and Felonies commit-
ted on the high Seas, and Offences against the Law of
Nations,” id. cl. 10, to “declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Cap-
tures on Land and Water,” id. cl. 11, to “raise and support
Armies,” id. cl. 12, to “provide and maintain a Navy,” id. cl.
13, and to regulate “the land and naval forces,” id. cl. 14.
Superior Court, No. B155736, slip op. at 24 (Cal. Ct. App. Jan. 15, 2003)
(“The sole purpose of section 354.6 is to extend the statute of limitations
for common law claims for unpaid labor and persone! injuries arising
out of slave or forced labor.”). Both decisions were issued after our
opinion was sent to the Clerk for filing.
* Some Appellants assert that federal jurisdiction is lacking over
their claims. We address that issue below.
AEE oe WLS bk vie BES
Sea AE ae Saari
ji CBA DiS PM OS IN RES Sea in Khel
35a
While the Constitution allocates these foreign affairs
powers specifically to the federal government, it also ex-
pressly prohibits the states from exercising certain foreign
relations powers, including both some of those expressly
allocated to the federal government and a few others. “No
State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal” or, without consent of
Congress, “lay any Imposts or Duties on Imports or Exports,”
“keep Troops or Ships of War in time of Peace,” “enter into
any Agreement or Compact ... with a foreign Power,” or
“engage in War, unless actually invaded.” Jd. § 10.
Because the Constitution mentions no general foreign
affairs power, and because only a few specified powers
related to foreign affairs are expressly denied the states,
one might assume that, with certain exceptions, states are
free to pursue their own foreign policies. This is not,
however, the case. To the contrary, the Supreme Court has
long viewed the foreign affairs powers specified in the text
of the Constitution as reflections of a generally applicable
constitutional principle that power over foreign affairs is
reserved to the federal government. The Court has some-
times expressed this principle in expansive terms, declar-
ing, for example, that “[plower over external affairs is not
shared by the States; it is vested in the national govern-
ment exclusively.” United States v. Pink, 315 U.S. 203, 233
(1942); see also Chae Chan Ping v. United States, 130 U.S.
581, 606 (1889) (The Chinese Exclusion Case ) (“For local
interests the several States of the Union exist, but for
national purposes, embracing our relations with foreign
nations, we are but one people, one nation, one power.”).
The implication of the general principle is that “even
in [the] absence of a treaty” or federal statute, a state may
violate the constitution by “establish[ing] its own foreign
36a
policy.” Zschernig v. Miller, 389 U.S. 429, 441 (1968).° Zscher-
nig concerned an Oregon statute that provided for escheat of
estate property claimed by a nonresident alien unless United
States citizens had reciprocal rights in the country of the
alien’s residence and foreign heirs in that country would
have the right to receive the proceeds of Oregon estates
without confiscation. Jd. at 430-31. The Court held that,
while a reciprocity statute of this sort was not facially
invalid, probate courts applying it impermissibly relied on
inquiries into the type of governments that ob-
tain in particular foreign nations — whether
aliens under their law have enforceable rights,
whether the so-called “rights” are merely dispen-
sations turning upon the whim or caprice of gov-
ernment officials, whether the representation of
consuls, ambassadors, and other representatives
of foreign nations is credible or made in good
faith, whether there is in the actual administra-
tion in the particular foreign system of law any
element of confiscation.
Id. at 434. In short, the Court found that the application of
the statute depended less on an evaluation of the stated
law of a particular country than on whether that country’s
political system was legitimate in the view of the Oregon
courts. See id. at 440 (noting that state courts had held that
communist and fascist countries did not grant rights recipro-
cal to those of Oregonians). To condition the application of
* The doctrine has been referred to as “dormant foreign affairs
preemption,” or simply as “the foreign affairs power.” See Gerling
Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 751 n.9 (9th Cir.
2001) (internal quotation marks removed), cert. granted sub nom. Am.
Ins. Ass'n v. Low, 71 U.S.L.W. 3373 (2003).
Oe ee oe ee
)
37a
state law on the political system of a foreign country was
“an intrusion by the State into the field of foreign affairs
which the Constitution entrusts to the President and the
Congress.” Jd. at 432.
Despite the broad language of Pink and the Chinese
Exclusion Case, however, Zschernig is “(t]he only case in
which the Supreme Court has struck down a state statute
as violative of the foreign affairs power.” Int'l Ass’n of
Indep. Tanker Owners v. Locke, 148 F.3d 1053, 1069 (9th
Cir. 1998), rev’d in part on other grounds sub nom. United
States v. Locke, 529 U.S. 89 (2000). Zschernig has been
applied sparingly, because the Supreme Court has held
that a statute does not violate the constitution where it
merely has “some incidental or indirect effect in foreign
countries.” Clark v. Allen, 331 U.S. 503, 517 (1947) (up-
holding facially a statute similar to that subsequently
struck as applied in Zschernig ).’
Noting that “the federal government’s foreign affairs
power.... is rarely invoked by the courts,” we have de-
clined to invalidate under Zschernig a California statute
with certain superficial similarities to section 354.6.
” Other courts have, however, invalidated statutes under foreign
affairs doctrine. See, e.g., Nat'l Foreign Trade Council v. Natsios, 181
F.3d 38, 49-61 (1st Cir.1999) (invalidating Massachusetts law restrict-
ing ability of Massachusetts and its agencies to purchase goods or
services from individuals or companies engaged in business with
Burma), aff’d on other grounds sub nom. Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000); Spring-
field Rare Coin Galleries, Inc. v. Johnson, 115 [1l.2d 221, 236-37, 104
Ill. Dec. 743, 503 N.E.2d 300 (1986) (invalidating state statute excluding
South African coins from otherwise generally applicable state tax
exemptions).
38a
Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d
739, 752 (9th Cir. 2001), cert. granted sub nom. Am. Ins.
Ass’n v. Low, 71 U.S.L.W. 3373 (2003). Gerling concerned
California’s Holocaust Victim Insurance Relief Act, Cal.
Ins.Code §§ 13800-13807 (“HVIRA”), which requires
insurers doing business in California to file certain infor-
mation about any insurance policies that they or compa-
nies “related” to them sold in Europe and that were in
effect between 1920 and 1945. Id.; see Gerling, 240 F.3d at
743, 753. While recognizing that HVIRA involved foreign
affairs, we held that it was constitutional because of the
combination of two factors: first, “HVIRA, on its face,
involves commerce alone” — and thus should be considerrd
under the Supreme Court’s foreign commerce cases rather
than under the foreign affairs cases; and second, HVIRA
“is not, on its face, directed at any particular foreign country”
— and thus is comparatively unlikely to interfere with the
foreign relations of the federal government. Jd. at 753.
While Gerling shows that the general prohibition
against state involvement with external affairs is not as
broad as some judicial statements would imply, it also
suggests a mode of analysis that is relevant to the cases
before us. In particular, Gerling distinguishes among
statutes according to the foreign affairs functions that
they implicate. Gerling suggests that statutes that “mainly
involve foreign commerce” are among those least likely to
be held invalid under the foreign affairs power. Jd. The
regulation of commerce is simply not central to the foreign
affairs power that is off limits to states.* For present
* State regulation of foreign commerce might, however, exceed
constitutional limitations under other constitutional doctrines. See, e.g.,
‘ (Continued on following page)
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39a
purposes, we must consider the importance to foreign
affairs analysis of another subset of foreign affairs powers:
the power of the federal government to make and to
resolve war, including the power to establish the procedure
for resolving war claims.
While neither the Constitution nor the courts have
defined the precise scope of the foreign relations power
that is denied to the states, it is clear that matters con-
cerning war are part of the inner core of this power. Of the
eleven clauses of the Constitution granting foreign affairs
powers to the President and Congress, see supra, seven
concern preparing for war, declaring war, waging war, or
settling war.’ Most of the Constitution’s express limita-
tions on states’ foreign affairs powers also concern war.”
Even those foreign affairs powers in the Constitution that
do not expressly concern war and its resolution may be
understood, in part, as a design to prevent war. Indeed, as
the Federalist shows, supporters of the new Constitution
Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 328 (1994)
(considering whether state’s international tax reporting system violated
either dormant commerce clause or federal government’s ability to
speak in “one voice.”)
* See U.S. Const., art. II, § 2, cl. 1 (making President Commander in
Chief); id. cl. 2; (authorizing President to make treaties with advice and
consent of Senate); id. art. I, § 8, cl. 1 (authorizing Congress to “provide for
the common Defence”); id. cl. 11 (authorizing Congress to declare war); id.
cl. 12 (authorizing Congress to raise and support armies); id. cl. 13
(authorizing Congress to “provide and maintain a Navy”); id. cl. 14
(authorizing Congress to regulate “the land and naval forces”).
* See id. §10 (prohibiting states from entering “any Treaty,
Alliance, or Confederation,” or, without congressional authorization,
from “keep{ing) Troops or Ships of War in time of Peace” and from
“engagiing) in War, unless actually invaded.”)
40a
believed that disunity in international affairs risked
unnecessary war. See, e.g., THE FEDERALIST, No. 3, at 13
(Clinton Rossiter ed., 1961) (“[F]ewer just causes of war
will be given by the national government, [and] it will also
be more in their power to accommodate and settle them
amicably.”). The Supreme Court cases under the foreign
affairs power have also been driven, in part, by this
concern. Thus the inheritance provision at issue in
Zschernig, although superficially unrelated to war, was
seen by a Court operating at the height of the Cold War as
a potential provocation to foreign powers. “ ‘Experience has
shown,” the Court wrote in striking the provision, “ ‘that
international controversies of the gravest moment, some-
times even leading to war, may arise from real or imagined
wrongs to another’s subjects inflicted, or permitted, by a
government.’” 389 U.S. at 441 (quoting Hines uv.
Davidowitz, 312 U.S. 52, 64 (1941)). Matters related to
war are for the federal government alone to address.
Among the six district court decisions we review here,
the only one to reach the foreign affairs challenge to
section 354.6 held that the provision was unconstitutional
under that doctrine for six reasons:
(1) the terms of section 354.6 and its legislative
history demonstrate a purpose to influence for-
eign affairs directly, (2) the statute targets par-
ticular countries, (3) the statute does not
regulate an area that Congress has expressly
delegated to states to regulate, (4) the statute es-
tablishes a judicial forum for negative commen-
tary about the Japanese government and
Japanese companies, (5) the Japanese govern-
ment asserts that litigation of these claims could
complicate and impede diplomatic relationships
of the countries involved, and (6) the United
Sh neh nae Ryd a
PO be EARN te
4la
States, through the State Department, contends
that section 354.6 impermissibly intrudes upon the
foreign affairs power of the federal government.
Forced Labor (Koreans), 164 F. Supp. 2d at 1173. Although
we agree that section 354.6 violates the foreign affairs power,
we base our holding on a narrower consideration. We hold
that 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.
With section 354.6, California seeks to redress wrongs
committed in the course of the Second World War. By its
terms, only “Second World War slave labor victims” and
“Second World War forced labor victims” can bring suit
under the provision. § 354.6(b). The wrong-doers under the
statute — the enslaving individuals or entities — include
“the Nazi regime, its allies and sympathizers, or enter-
prises transacting business in any of the areas occupied by
or under control of the Nazi regime or its allies or sympa-
thizers.” § 354.6(a)(1), (2). The governmental entities are,
by definition, wartime enemies of the United States, while
the “enterprises” identified in the provision, if not them-
selves our wartime enemies, were operating in enemy
territory and presumably — no party disputes this — with
the consent and for the benefit of our wartime enemy.
Wrongs committed after the end of the war are not cogniza-
ble under section 354.6; the provision concerns only acts that
took place during the years leading up to the war and during
the years of the war itself. Jd. In short, California has sought
to create its own resolution to a major issue arising out of the
war — a remedy for wartime acts that California’s legislature
believed had never been fairly resolved.
The United States has already exercised its own
exclusive authority to resolve the war, including claims
42a
arising out of it. It did not choose, however, to incorporate
into that resolution a private right of action against our
wartime enemies or their nationals. The United States
resolved the war against Germany by becoming a party to
a number of treaties and international agreements,
beginning with the 1945 agreements at Yalta and Pots-
dam, in which the United States, Britain, and the Soviet
Union agreed to extract reparations from Germany and its
nationals but did not include a private right of action
against either. See Protocol of the Proceedings, Berlin
(Potsdam) Conference, Aug. 2, 1945, art. (B)(111), 3
Bevans 1207. Subsequent agreements also failed to create
a private right of action, including the Paris Reparations
Treaty of 1946 between the United States and 17 other
nations, Agreement on Reparations From Germany, Jan.
14, 1946, 61 Stat. 3157, T.I.AS. 1655 (“Paris Reparations
Treaty”); the Transition Agreement of 1952 between the
Western Powers and the Federal Republic of Germany,
Convention Between the United Kingdom of Great Britain
and Northern Ireland, France, the United States of Amer-
ica and the Federal Republic of Germany on the Settle-
ment of Matters Arising Out of the War and the
Occupation, May 26, 1952 (as amended by Schedule IV to
the Protocol on the Termination of the Occupation Regime
in the Federal Republic of Germany, Oct. 23, 1954), 6
U.S.T. 4117, 331 U.N.T.S. 219: the London Debt Agree-
ment of 1953 between the United States and 20 other
nations, Agreement on German External Debts, Feb. 27,
1953, 4 U.S.T. 443, 333 U.N.T.S. 3; and the Two-Plus-Four
Treaty, which reunified Germany and became effective on
ON A chal
ee ns Sea SE nee ell ts ath
ieee tees
we
A mt ee eke Je Fie ert nN
. Woe ar
43a
March 15, 1991, Treaty on the Final Settlement with
Respect to Germany, Sept. 12, 1990, 29 I.L.M. 1186." Most
recently, the Foundation Agreement of July 17, 2000, an
executive agreement between the governments of Ger-
many and the United States, provided a limited form of
remedy for claimants such as Deutsch. Agreement Between
the Government of the United States of America and the
Government of the Federal Republic of Germany Concerning
the Foundation “Remembrance, Responsibility and the
Future.” The Foundation was created by Germany, in
negotiation with the United States, five Central and Eastern
European countries, Israel, and the non-governmental
Conference on Jewish Material Claims Against Germany,
" For useful and accessible surveys of these agreements as they
apply to war reparations, see Jwanowa v. Ford Motor Co., 67 F. Supp.
2d 424, 448-56 (D.N.J. 1999), and Burger-Fischer v. DeGussa AG, 65 F.
Supp. 2d 248, 265-73 (D.N.J. 1999). The district court in Deutsch relied
heavily on these cases and adopted their conclusion that Deutsch’s
claim raised a nonjusticiable political question, Deutsch, No. CV 00-
4405, at 2-6, a conclusion with which we disagree. The district court
determined that the postwar agreements created the exclusive remedy
to the matters raised by Deutsch, and that to order relief would
therefore require the court to interfere with the foreign affairs choices
of the political branches. Jd. Under political question doctrine, the court
noted, it is impermissible for a court to make policy related to foreign
affairs. Id. at 2 (citing Baker v. Carr, 369 U.S. 186, 211 (1962)). There-
fore, the district court supposed, Deutsch raised a nonjusticiable
political question. The problem with this argument is that it makes
every dispute over the proper application of a treaty into a political
question, because treaties inherently involve foreign affairs. No
political question, however, is raised by the simple application of the
requirements of a treaty to which the United States is a party. Treaties
have the force of law, see Missouri v. Holland, 252 U.S. 416 (1920), and,
if they are self-executing or have been implemented through legislation,
must be applied by the courts. See United States v. Alvarez-Machain,
504 U.S. 655, 667 (1992).
44a
for the purpose of making payments to people who suf-
fered at the hands of German companies during the Nazi
Era. It provides for payment of up to 15,000 German
Marks (roughly $7500) to individual claimants who were
subjected to forced labor. See id. at Annex A. We do not
have the authority to consider the adequacy of such
payments here. Indeed, we acknowledge that no possible
compensation could be sufficient to remedy the harm done
to Holocaust victims and their families.
No party argues that any of these agreements pro-
vides the authority for a state of the United States to
create a private right of action enabling individuals to
recover for wartime injuries against German corporations.
Deutsch argues, however, that the terms of these various
agreements do not prohibit a state from creating such a
right of action, and that in the absence of such a prohibi-
tion, his action may proceed. Deutsch’s argument cannot
carry the day. As we explained earlier, the Constitution
allocates the power over foreign affairs to the federal
government exclusively, and the power to make and
resolve war, including the authority to resolve war claims,
is central to the foreign affairs power in the constitutional
design. In the absence of some specific action that consti-
tutes authorization on the part of the federal government,
states are prohibited from exercising foreign affairs
powers, including modifying the federal government's
resolution of war-related disputes.
The war with Japan ended with the Treaty of Peace,
signed in San Francisco, on September 8, 1951, by the
representatives of the United States and 47 other Allied
powers and Japan, and ratified by the United States
Senate on April 28, 1952. Treaty of Peace with Japan,
Sept. 8, 1951, 3 U.S.T. 3169, T.1LA.S. No. 2490. Although
snes — =
45a
the parties dispute whether that treaty by its own terms
precludes the claims brought by any of the Appellants,”
that is the only dispute regarding the treaty. No party
asserts that the treaty either creates — explicitly or implic-
itly — a private right of action against Japan or its nation-
als, or authorizes states of the United States to create
such a right.” Once again, without such authorization,
* The central disagreement concerns the meaning of Article 14(b)
of the treaty, which is quoted in full supra note 3. The district judge
held that Appellants’ claims were waived because they are claims of
Allied nationals “arising out of actions taken by [Japanese] nationals in
.the course of the prosecution of the war.” Id.; Forced Labor (Allied LD),
114 F. Supp. 2d at 944-49. Appellants argue that the actions of the
Appellee corporations were not taken “in the course of the prosecution
of the war,” or that it is an issue of fact whether they were or not.
* Appellants do assert that, if Article 14 of the treaty waives
claims against Japanese nationals, as Appellees assert, then Article 14
is superceded by Article 26. Article 26 provides, in pertinent part:
Should Japan make a peace settlement or war claims settle-
ment with any State granting that State greater advantages
than those provided by the present Treaty, the same advan-
tages shall be extended to the parties to the present Treaty.
Treaty of Peace with Japan, at art. 26. Appellants argue that other
foreign states have entered into agreements with Japan that do not
waive private claims and that those agreements thereby extend to those
foreign states “greater advantages” than the terms extended to the
United States. The district court found that Article 26 confers rights
only on the “parties” to the treaties, not on individuals. Forced Labor
(Allied I), 114 F. Supp. 2d at 949. We agree, at least as to the right to
invoke the clause. It is the prerogative of the United States, not of
California or of Appellants, to determine whether a foreign state has
been granted greater advantages and, if so, whether it is in the interest
of the United States to incorporate those advantages (along with any
concomitant lesser disadvantages) into the treaty. The United States
has not invoked Article 26 to authorize a private right of action.
Appellants’ reliance on the article is, therefore, unavailing.
46a
states lack the power to alter the maeras government's
resolution of disputes relating to the war.“
The grievances of at least one class of potential
plaintiffs identified in section 354.6, prisoners of war, were
addressed by the federal government in domestic legisla-
tion. See § 354.6(aX(2). Under the War Claims Act of 1948,
50 U.S.C. app. §§ 2001-2017p, assets seized from Germany,
Japan, or their nationals within the United States and its
territory were used to compensate American prisoners of war
whose rights had been violated. See U.S. FOREIGN CLAIMS
SETTLEMENT COMMISSION, SETTLEMENT OF CLAIMS BY THE
FOREIGN CLAIMS SETTLEMENT COMMISSION FROM SEPTEMBER
14, 1949 To MARCH 31, 1955, at 10-11 (1955); 50 U.S.C. app.
§ 2005(d 2A). The Act required prisoners of war to submit
their claims to a federal agency, whose decision was final; it
conceived of no private right of action against German or
Japanese entities. See 50 U.S.C. app. § 2010.
California was dissatisfied with how the federal
government chose to address the various wartime injuries
suffered by victims of the Nazis and their allies after the
United States brought the Second World War to a close.
The California legislature found that, under the treaties
and compensatory programs that the federal government
had established, “victims of Nazi persecution have been
deprived of their entitlement to compensation for their
* It is immaterial that many of the Appellants are nationals of two
nations, China and Korea, that were not signatories of the San Fran-
cisco treaty. When the United States has been a party to a war, the
resolution it establishes to that war is the resolution for the whole of
the United States. States lack the power to modify that resolution,
regardless of the citizenship of those seeking redress.
47a
labor and for injuries sustained while performing that
labor as forced or slave laborers prior to and during the
Second World War.” 1999 Cal. Stat. 216, § 1(b) (codified in
notes to Cal. Code Civ. Proc. § 354.6). The state legislature
therefore enacted section 354.6 to remedy these 54-year-
old injuries in a manner favored by California but not
provided for by the federal government. Appellants assert
that no international agreement or other federal action
prohibits California from doing so. However, as we have
stated, because the issue is the lack of state power, it is
immaterial whether the federal government enacted a
prohibition. The federal government, acting under its
foreign affairs authority, provided its own resolution to the
war; California has no power to modify that resolution.”
‘* One might argue that the Holocaust was distinct from the
German war effort, that claims for injuries arising from the Holocaust
do not, therefore, relate to the war, and that such injuries, because they
are unrelated to the war, do not implicate the war powers of the federal
government. We need not assume that the acts of enslavement encom-
passed by section 354.6 served military purposes or advanced the war
effort of the Nazis or their allies. We simply note that, by its terms,
section 354.6 creates a right of action only for “Second World War” slave
labor victizas. For the purposes of the provision, the California legisla-
ture explicitly defined the harms suffered by such victims as pertaining
to the war. Moreover, the federal government’s exclusive power to
resolve the war necessarily includes an exclusive power to address the
injuries that section 354.6 attempts to remedy. The treaties themselves
confirm that the federal government regarded all wartime injuries as
matters integral to peacemaking, regardless of the purpose or effect of
the wrong-doer’s acts. In the Paris Reparations Treaty, for example, the
United States and the other signatories “agree[d) among themselves
that their shares of reparation, as determined by the present Agree-
ment, shall be regarded by each of them as covering all its claims and
those of its nationals against the former German Government and its
Agencies, of a governmental or private nature arising out of the war.”
Paris Reparations Treaty, Jan. 14, 1946, art. 2(A), 61 Stat. 3157, 3163;
(Continued on following page)
48a
Before concluding our discussion of this issue, we
must consider Appellants’ most vigorous argument in favor
of the constitutionality of section 354.6: that the provision
“presents striking parallels” to JIVIRA, the insurance
reporting requirement that we upheld in Gerling. Appel-
lants correctly note two points of similarity: first, like
section 354.6, HVIRA is related to Nazi-era wrongs;
second, as under section 354.6, at least as applied to the
cases before us, the parties regulated by HVIRA are
businesses. The similarity ends there, however. Unlike
section 354.6, HVIRA does not attempt to require the
affected businesses to compensate victims for past wrongs:
Specifically, as we noted in Gerling, HVIRA does not
impose obligations on “European insurance companies to
pay or not to pay claims on European policies.” Gerling,
240 F3d at 745 (internal quotation marks removed).
HVIRA, rather, is merely a reporting requirement and the
only consequence of nencom ,iance is the inability to do
business in California in the future. Jd. Whereas section
354.6 seeks to provide a monetary remedy for decades-old
wartime wrongs, HVIRA is a forward-looking regulatory
statute. In short, unlike section 354.6, HVIRA does not
see also, e.g., Treaty of Peace with Hungary, Feb. 10, 1947, art. 30(4), 61
Stat. 2109, 2126 (bilateral treaty between Allied Powers and Hungary)
(“Hungary waives on its own behalf and on behalf of Hungarian
nationals all claims against Germany and German nationals outstanding
on May 8, 1945, except those arising out of contracts and other obligations
entered into, and rights acquired, before September 1, 1939.”).
* Appellants in Gerling originally challenged two other statutes
that did attempt to force payment of Nazi-era insurance claims, see Cal.
Code Civ. Proc. § 354.5; Cal. Ins. Code § 790.15, but those claims were
dismissed for lack of standing and not addressed on appeal. Gerling,
246 F.3d at 745; see also Gerling Global Reinsurance Corp. of Am. uv.
(Continued on following page)
_
49a
attempt to hold defendants liable for their past wartime
conduct; it therefore does not implicate the exclusive power
of the federal government to make and resolve war, including
the resolution of claims arising out of such actions.
Section 354.6 runs afoul of the restriction on the
exercise of foreign affairs powers by the states. Because
California lacks the power to create a right of action — or,
alternatively, to resurrect time-barred claims — in order to
provide its own remedy for war-related injuries inflicted by
our former enemies and those who operated in their
territories, we hold that section 354.6 is unconstitutional.
III. Statutes of Limitations
In addition to section 354.6, Appellants bring various
tort claims under common law, California statutory and
constitutional law, as well as for violations of international
law under the Alien Tort Claims Act, 28 U.S.C. § 1350
(“ATCA”). See supra. All these claims are barred by their
respective statutes of limitations.
Appellants apparently bring their common law claims
under California law, although in many instances they do
not identify the jurisdiction under whose law they seek
relief. Some of the parties, including both defendants and
plaintiffs, are California residents, while others are not;
the alleged injuries all took place outside of California.
Regardless of the source of the substantive law, because all
the claims, including both common law and statutory, were
brought in California state court or in a district court
Low, 296 F.3d 832, 842 & n.7 (9th Cir. 2002), cert. granted sub nom. Am.
Ins. Ass’n v. Low, 71 U.S.L.W. 3373 (2003).
50a
within California, we apply to them the statute of limita-
tions that would be applied in California state court.”
California applies the “governmental interest” approach to
conflict of law issues. Hurtado v. Superior Court, 11 Cal.
3d 574, 579-80 (1974). Under this approach, the correct
choice of law depends on “an analysis of the respective
interests of the states involved.” Jd. at 579. Where the
conflict concerns a statute of limitations, the governmental
interest approach generally leads California courts to
apply California law. Witkin, 3 CALIFORNIA PROCEDURE
§ 104 (4th ed. 1996); see, e.g., Peterson v. Kennedy, 771 F.2d
1244, 1251 n.4 (9th Cir. 1985); American Bank of Com-
merce v. Corondoni, 169 Cal. App. 3d 368 (Ca. Ct. App.
1985), and especially so where California’s statute would
bar a claim. California’s interest in applying its own law is
strongest when its statute of limitations is shorter than
that of the foreign state, because a “state has a substantial
interest in preventing the prosecution in its courts of
claims which it deems to be ‘stale.’ Hence, subject to rare
exceptions, the forum will dismiss a claim that is barred
by its statute of limitations.” RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 142, cmt. f (1988).
All the claims in the cases before us, other than those
under the ATCA, have been stale for several decades
under the applicable California statutes of limitations. See
Cal. Code Civ. Proc. § 340 (one-year statute for personal
injury torts, wrongful death and false imprisonment); id.
§ 338 (three-year statute for taking of or injury to personal
” The district court addressing the claims brought by Korean and
Chinese Appellants found that the non-federal claims would be time-
barred under Chinese and Japanese law, as well as under the law of
California. Forced Labor (Koreans), 164 F. Supp. 2d at 1182.
5la
property, and for fraud); Cal. Bus. & Prof. Code § 17208
(four-year statute for claims of unfair business practices).
Only an extraordinarily strong interest of a foreign state
in keeping these claims alive could overcome the presump-
tion that California will not hear claims that have been
stale for so long under its own law. No such strong foreign
interest has been demonstrated here.
The statute of limitations under the ATCA is 10 years.
Doe v. Unocal Corp., __ F.3d ___, 2002 U.S. App. LEXIS
19263, at *27 (9th Cir. 2002). Appellants have thus
brought these claims far too late as well.”
* The 10-year limit is not stated in the provision. Rather, we
adopted it from the Torture Victim Protection Act, see Pub.L. No. 102-
256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350, statutory notes)
(“TVPA”), which has an explicit 10-year statute. Papa v. United States,
281 F.3d 1004, 1011-13 (9th Cir. 2002). We did so because where a
federal statute lacks a specified statute of limitations,
courts apply the limitations period provided by the jurisdic-
tion in which they sit unless “a rule from elsewhere in fed-
eral law clearly provides a closer analogy than available
state statutes, and when the federal policies at stake and
the practicalities of litigation make that rule a significantly
more appropriate vehicle for interstitial lawmaking.”
Papa, 281 F.3d at 1011-12 (citing North Star Steel Co. v. Thomas, 515
U.S. 29, 35 (1995)). We held that ATCA was closely analogous to the
TVPA both in its purpose and in its mechanism for achieving that
purpose. Papa, 281 F.3d at 1012. Appellants ask us to reconsider our
decision in Papa, at least as it applies to the present cases, and hold
that the ATCA is more closely analogous to section 354.6 than to the
TVPA. The result, Appellants argue, would be that the claims are not
barred until 2010. For the reasons we stated in Papa, and because we
hold that section 354.6 is unconstitutional, we reaffirm that the ATCA
statute of limitations in this case, as in other cases, is 10 years.
** Some Appellants who did not bring a claim under the ATCA
argue that they should be permitted to amend their complaints to do so.
In light of our holding, such an amendment would be futile.
52a
Some Appellants contend, however, that their claims
under both state law and the ATCA are equitably tolled
and could therefore survive our invalidation of section
354.6. Although the district court found that they did not
allege facts sufficient to trigger equitable tolling, these
Appellants contend that they were not required to allege
such facts, because a statute of limitations is an affirma-
tive defense, which a plaintiff is not required to anticipate
in the complaint. They also contend that even if they were
required to allege such facts, the district court should have
granted them leave to amend in order to give them the
opportunity to do so. The curious aspect of this argument
is that all of the Appellants who make this argument did
plead equitable tolling in their complaints. Furthermore,
they alleged facts that they believed would trigger such
tolling. They alleged, for example, that the defendants had
kept the plaintiffs ignorant of essential facts in the defen-
dants’ possession. The district court considered these
alleged facts and found them insufficient to trigger tolling.
Forced Labor (Koreans), 164 F. Supp. 2d at 1181-82.
Although the court’s discussion of equitable tolling con-
cerned only the ATCA, its reasoning applies equally to the
state law claims. On appeal, these Appellants offer neither
a satisfactory answer to the district court’s finding regard-
ing equitable tolling nor any hint of any additional facts
that they might allege in an amended complaint. Under
these circumstances, amendment would be futile. We
therefore find no abuse of discretion in the district court’s
dismissal of the complaints with prejudice.”
* Deutsch argues for the first time on appeal that he should be
permitted to amend his complaint to include a claim under the TVPA.
(Continued on following page) y
ee ae ee een
aa i ae
53a
IV. Jurisdiction
In many of the cases before us, there is indisputable
federal jurisdiction. In some, for example in Deutsch and
in Dunn v. Nippon Steel Corp.,” there is diversity jurisdic-
tion. 28 U.S.C. § 1332. Appellants in several other cases,
for example in Terrence v. Mitsui & Co., Wheeler v. Mitsui
& Co., and Kim v. Ishikawajima Harima Heavy Indus. Co.,
assert claims under international law, thus giving rise to
federal subject matter jurisdiction under 28 U.S.C. § 1331.
He offers no explanation, however, for why he failed to bring that claim
in his first amended complaint. Moreover, as noted above, the TVPA has
an explicit statute of limitation of 10 years. Deutsch argues that that
period commenced on the effective date of the Act, rather than on the
date on which the injury was complete. He cites no authority for this
proposition, and we do not find it to be a reasonable or plausible one. As
Deutsch notes, we have held that the TVPA is applicable to acts that
took place prior to the effective date of the Act. Alvarez-Machain v.
United States, 107 F.3d 696, 702-03 (9th Cir. 1996). In Alvarez-
Machain, however, the plaintiff filed his claim only three years after the
date of the alleged injury. Jd. at 700. Nothing in our cases or the statute
suggests that Congress intended the TVPA to open the federal courts to
claims that were already more than 40 years old when the statute
became effective or that no time limit exists under the TVPA as to the
resurrection of claims for damages that may have occurred in the far
distant past. Because the TVPA has a 10-year statute of limitations,
permitting Deutsch to amend his complaint would be futile. We
therefore affirm the dismissal with prejudice.
** In Dunn, the amount in controversy is not stated in the com-
plaint, nor was the amount determined by the district court. However,
the Appellant seeks compensation and punitive damages for roughly
three years of withheld wages, as well as for severe physical and mental
injuries he suffered at the hands of the defendants and their predeces-
sors during that time. There is thus no doubt that this case meets the
$75,000 minimum amount in controversy required for diversity
jurisdiction under 28 U.S.C. § 1332.
54a
Among the many cases that have been consolidated,
there are some individual cases as to which federal juris-
diction may be uncertain. Appellants in those cases origi-
nally sought relief in state court, under state law,” against
non-diverse defendants. After removal and consolidation, ©
some of the Appellants sought remand to state court. The
district court denied their motions, Forced Labor (Allied I),
114 F. Supp. 2d at 943, on the ground that “the complaints
. , on their face, implicate the federal common law of
foreign relations.” Jd. Appellees opposed remand on other
grounds as well. Appellants in some of these cases — not
precisely the same group that moved for remand below —
now argue that federal jurisdiction is lacking.
Normally, of course, we would address all jurisdic-
tional issues as an initial matter, as they would determine
whether we could proceed to the merits. The situation is
different with respect to the cases consolidated here,
because the cases over which jurisdiction is disputed raise
no merits issues that are not also raised by one or more
cases over which jurisdiction is certain and which have
been consolidated with the disputed cases. In short, we are
compelled to addruss all of the merits issues in these
consolidated cases, regardless of whether there is jurisdic-
tion over each of them. Furthermore, the ultimate survival
of all of these cases depends on the validity of the provi-
sions of section 354.6. In light of our holding that section
354.6 is unconstitutional, remand to state court of the
* Although some plaintiffs amended or sought to amend their
complaints, after removal, to include federal claims, such amendments
do not bear on the evaluation of removal jurisdiction. Abada v. Charles
Schwab & Co., 300 F.3d 1112, 1117 (9th Cir. 2002).
BSA ACCS RCL IP Shi EIN BM EES StL OS ch Ha Ne Mase hae lias Rite ath 9
55a
cases of uncertain federal jurisdiction would be futile, as
the state court would simply dismiss the claims with
prejudice. See Bates v. Jones, 127 F.3d 870, 873 (9th Cir.
1997) (noting that the California Supreme Court “has yet
to disregard a directly applicable decision of this court on a
question of federal law”). Therefore, our determination of
the uncertain jurisdictional issues could have no effect on
the outcome of any of the cases.
For these reasons, we decline to address the uncertain
jurisdictional issues and simply affirm the district court’s
dismissal of all the cases before us.
Conclusion
For the foregoing reasons, we hold that California
Code of Civil Procedure section 354.6 is an unconstitu-
tional intrusion on the foreign affairs power of the United
States and that Appellants’ remaining claims are barred
by the applicable statutes of limitations. The judgments of
the district courts are
AFFIRMED.
56a
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEF TIBOR DEUTSCH, an
individual; JOSEF TIBOR DEUTSCH,
as the survivor of George
Deutsch,
Plaintiffs-Appellants,
v.
TURNER CORPORATION, a Dela-
ware Corporation with corporate
regional headquarters located in
California; KITCHELL CORPORA-
TION USA, an Arizona
Corporation authorized to do
business in California; Hochtief
AG, a German Corporation,
Defendants-Appellees.
No. 00-56673
D.C. No.
CV-00-04405-SVW
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
WooprRow M. HUTCHSION,
Plaintiff-Appellant,
Vv.
MITSUBISHI MATERIALS
CORPORATION; MITSUBISHI
MATERIALS USA, a business.
association purporting to be a
California corporation;
MITSUBISHI CORPORATION, a
Japanese business association;
No. 01-17115
D.C. No.
CV-00-02163-VRW
57a
MITSUBISHI INTERNATIONAL
CORPORATION, a business
association purporting to be a
New York corporation;
MITSUBISHI HEAVY INDUSTRIES,
LTD., a Japanese business
association; MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC., a
business 2ssociation purporting
to be a Delaware corporation,
Defendants-Appellees.
LESTER I. TENNY,
Plaintiff-Appellant,
Vs
MITSUI & Co. LTD., a Japanese
business association; MITSUI &
Co (USA), Inc, a business
association purporting to be a
New York Corporation; MITSUI
MINING Co LTD, a Japanese
business association; MITSUI
MINING USA INC, a business
association purporting to be a
Delaware corp,
Defendants-Appellees.
SHIRLEY M. RUBENSTEIN; JULIA E.
STEVENSON; GLEN LEROY,
individually and on behalf of a
class of persons similarly
situated,
Plaintiffs-Appellants,
No. 01-17116
D.C. No.
CV-00-02357-VRW
No. 01-17123
D.C. No.
CV-00-03737-VRW
58a
ISHIHARA SANGYO KAISHA, LTD; ,
ISHIHARA CORPORATION, a |
California corporation; Isk
Americas, Inc., a Delaware
corporation,
Defendants-Appellees.
oT. Pee a ee
it ie A ade,
RAYMOND HEIMBUCH; VIVIAN O.
JOHNSON; WILLIAM R. LOWE; SAM
P. BUSE; ALFRED BEREST EDWIN
F. LINDROS; MICHAEL BIBIN; J. S. No. 01-17124
GRAY; KARL WILLIAM HOLT; D.C. No.
NORMAN R. MATTHEWS; DARREL CV-00-00064-VRW
D. STARK; CARMEL ZIPETO,
Plaintiffs-Appellants, :
v.
ISHIHARA SANGYO KAISHA, LTD, a
Japanese business association;
ISHIHARA CORPORATION; ISK
AMERICAS, INC., a business
association purporting to be a
Delaware corporation,
Defendants-Appellees.
MELODY SOLIS, individually and
on behalf of a class of persons
similarly situated,
eam No. 01-17134
aintiff-Appellant,
ad D.C. No.
v. CV-00-02359-VRW
NIPPON STEEL CORPORATION, a
Japanese business association;
NIPPON STEEL TRADING Co., LTD.,
59a
a Japanese business association;
NIPPON STEEL USA INC, a
business association purporting
to be a New York corportion;
NIPPON STEEL TRADING AMERICA,
Defendants-Appellees.
HARRY CORRE,
Plaintiff-Appellant,
v.
MITSUI & Co. LTD; MITSUI &
COMPANY (USA), INC.; MITSUI
MINING USA INC; MITSUI MINING
Co., LTD.,
Defendants-Appellees.
GARTH G. DUNN,
Plaintiff-Appellant,
v.
NIPPON STEEL CORPORATION, a
Japanese business association;
NIPPON STEEL USA, a business
association purporting to be a
New York Corp.,
Defendants-Appellees,
and
JAPAN IRON & STEEL, a Japanese
business association; YAWATA
IRON & STEEL, a Japanese
business association; FUJI IRON &
STEEL, a Japanese business
No. 01-17155
D.C. No.
CV-00-02690-VRW
No. 01-17157
D.C. No.
CV-00-03239-VRW
60a
association; MITSUBISHI
CORPORATION, a Japanese
business association; MITSUBISHI
SHOJI; SUMITOMO CORP.;
SUMITOMO COMMERCIAL COMPANY,
a Japanese business association,
Defendants.
JAMES O. KING, ~
Plaintiff-Appellant,
v.
NIPPON STEEL CORP; NIPPON
STEEL USA,
Defendants-Appellees.
PERFECTO LLANZA, on his own
behalf and on behalf of all others
similarly situated,
Plaintiffs-Appellants,
v.
MITsuI & Co (USA), INC, a
business association; MITSUI
MINING Co., LTD., a Japanese
business association; Mitsubishi
Corporation; Nippon Steel Corp,
a Japanese business association;
Nippon Steel USA Inc.,
Defendants-Appellees.
No. 01-17160
D.C. No.
CV-99-05042-VRW
No. 01-17172
D.C. No.
CV-00-03240-VRW
6la
ALBERTO SALDAJENO; ACELOPIO
GALEDO; GENEROSO JACOB,
individually and on behalf of a
class of persons similarly
situated,
Plaintiffs-Appellants,
V.
ISHIHARA SANGYO KAISHA, LTD, a
Japanese business association;
ISHIHARA CORPORATION (USA);
TAIHEIYO CEMENT, a Japanese
business association; ONODA
USA,
Defendants-Appellees.
ERNESTO SANTO DOMINGO,
individually and on behalf of a
class of persons similarly
situated; IMEDLA SANTO DOMINGO,
individually and on behalf of a
class of persons similarly
situated,
Plaintiffs-Appellants,
Vv.
ISHIHARA SANGYO KAISHA, LTD, a
Japanese corporation; ISHIHARA
CORPORATION U.S.A., California
corporation,
Defendants-Appellees.
No. 01-17176
D.C. No.
CV-00-02960-VRW
CV-00-03240-VRW
CV-00-03828-VRW
No. 01-17177
D.C. No.
CV-00-03828-VRW
- 62a
MANUEL A. ENERIZ; DEXTER
ENERIZ, Executor of the Estate of
Manuel A. Eneriz,
Plaintiffs-Appellants,
v.
MITSUI & COMPANY LTD.; MITSUI
& COMPANY (USA), INC.; MITSUI
MINING COMPANY, LTD. MITSUI
MINING USA INC,
Defendants-Appellees.
RALPH LEVENBERG, on behalf of
himself and all others similarly
situated,
Plaintiff-Appellant,
v.
NIPPON SHARYO LTD.; NIPPON
SHARYO USA., INC.,
Defendants-Appellees.
No. 01-17185
D.C. No.
CV-00-02691-VRW
No. 01-17189
D.C. No.
CV-99-01554-VRW
63a
HAROLD W. POOLE; ERNEST LOY;
FRANCIS W. AGNES; ROBERT C.
CLARK; CLARENCE S. KELLOGG,
Plaintiffs-Appellants,
v.
NIPPON STEEL CorP, a Japanese
business association; NIPPON
STEEL TRADING Co., LTD., a
business association purporting
- to be a New York corporation;
NIPPON STEEL TRADING AMERICA,
a business association purporting
to be a California corporation,
Defendants-Appellees.
SuK YOON KIM, on behalf of
himself and all others similarly
situated,
Plaintiff-Appellant,
v.
ISHIKAWAJIMA HARIMA HEAVY
INDUSTRIES LTD.; IHI INC.;
SUMITOMO HEAVY INDUSTRIES
LTp.; SUMITOMO HEAVY
INDUSTRIES (USA) INC.,
Defendants-Appellees.
ZHENHUAN MA,
Plaintiff-Appellant,
Vv.
No. 01-17195
D.C. No.
CV-00-02360-VRW
No. 01-17197
D.C. No.
CV-99-05303-VRW
No. 01-17201
D.C. No.
CV-01-02592-VRW
64a
KAJIMA CORPORATION; KAJIMA
CONSTRUCTION SERVICES, INC.;
KAJIMA DEVELOPMENT
CORPORATION; KAJIMA
ENGINEERING AND CONSTRUCTION,
INC.; KAJIMA INTERNATIONAL,
INC.; KAJIMA U.S.A., INC,
Defendants-Appellees.
SA SON SIN,
Plaintiff-Appellant,
v.
MITSUI & Co, LTD.; MITSUI & Co.
(USA); MITSUI ENGINEERING &
SHIPBUILDING Co., LTD.; PACECO
CORPORATION,
Defendants-Appellees.
RUBEN RESUS; CARLOS CADENILLA,
individually and on behalf of a
class of persons similarly
situated,
Plaintiffs-Appellants,
v.
MITSUI & Co. LTD., a Japanese
business association; MITSUI
BUSSAN KAISHA; MITSUI & Co
(USA), INC; MITSUBISHI
CORPORATION; MITSUBISHI INTER-
NATIONAL CORPORATION, a
business corporation; MITSUBISHI
HEAVY INDUSTRIES, LTD., a
Japanese business association;
No. 01-17203
D.C. No.
CV-00-03242-VRW
No. 01-17204
D.C. No.
CV-00-03313-VRW
65a
MITSUBISHI HEAVY INDUSTRIES
AMERICAN INC., a business
association; MITSUBISHI MATERI-
ALS CORPORATION, a Japanese
association; MITSUBISHI
MATERIALS USA CORPORATION, a
business association; SUMITOMO
CorRP., a Japanese business
association; SUMITOMO CORP. oF
AMERICA, a business association;
KUREHA CORPORATION OF
AMERICA, a business association;
FURUKAWA ELECTRIC NORTH
AMERICA, INC., a business asso-
ciation; TAIHETYO CEMENT, a
Japanese business association;
Onopo USA INC., a business
association; SHOWA DENKO K K, a
Japanese business association,
Defendants-Appellees.
SHANG-TING SUNG,
Plaintiff-Appellant,
V.
MITSUI & Co, LTD.; MITSUI & Co.
(USA); MITSUBISHI CORPORATION;
MITSUBISHI INTERNATIONAL
CORPORATION; MITSUI MINING
Co., LTD.; MITSUI MINING USA
INC.,
Defendants-Appellees.
No. 01-17207
D.C. No.
CV-00-02358-VRW
66a
RAYMOND WHEELER; ALEC
CHARLES MURPHY; WILLIAM
SCHMITT; HENDRICK ZEEMAN;
TAMMERUS WILLEM CARTER- No. 01-17210
VISSCHER; DAVID CLARKE; WILLEM D.C. No.
HENDRIK DE HAAN, CV-00-04278-VRW
Plaintiffs-Appellants,
Ve
MITSUI & Co. LTD, a Japanese
business association; MITSUI &
COMPANY (USA), INC., a business
association; MITSUI MINING
COMPANY, LTD., a Japanese
business association; MITSUI
MINING USA INC; NIPPON STEEL
USA; MITSUBISHI CORPORATION,
MITSUBISHI INTERNATIONAL CORP.;
MITSUBISHI HEAVY INDUSTRIES
AMERICA, INC.; MITSUBISHI
MATERIALS USA CORPORATION;
MITSUBISHI HEAVY INDUSTRIES,
LTD.,
Defendants-Appellees.
JAE SIK CHOE,
Plaintiff-Appellant, No. 01-17211
¥e D.C. No.
NIPPON STEEL CORPORATION; CV-99-05309-VRW
MITSUBISHI HEAVY INDUSTRIES,
LTD.
Defendants-Appellees.
67a
FRANK A. MENTE; NEVILLE J.
BOOKER, individually and on
behalf of persons similarly
situated,
Plaintiffs-Appellants,
v.
MITSUI & Co. LTD, a Japanese
association, AKA/Mitsui Bussan
Kaisha; MITSUI MINING COMPANY,
LTD., a Japanese business
association; MITSUI & COMPANY
(USA), Inc., a business
association; NIPPON STEEL
CORPORATION, a Japanese
corporation; NIPPON STEEL USA
INC., a business association;
MITSUBISHI CORPORATION, a
Japanese business association;
MITSUBISHI MATERIALS USA
CORPORATION; MITSUBISHI
MATERIALS CORPORATION, a
Japanese business association;
MITSUBISHI HEAVY INDUSTRIES,
LTD., a Japanese business
association; MITSUBISHI
INTERNATIONAL CORPORATION, a
business corporation,
Defendants,
and
MITSUI MINING USA INC, a
business association; MITSUBISHI
HEAVY INDUSTRIES AMERICA INC.,
a business association,
Defendants-Appellees.
No. 01-17230
D.C. No.
CV-00-03530-VRW
68a
AIZHU SU, on behalf of himself
and all others similarly situated;
CHUNSHENG TIAN, on behalf of
himself and all others similarly
' situated,
Plaintiffs-Appellants,
V.
MITSUBISHI CORPORATION, a
corporation; MITSUBISHI
CORPORATION, a corporation;
MITSUI & Co., LTD. a corporation;
MITSUI MINING COMPANY, LTD., a
corporation; MITSUI & COMPANY
(USA), INC., a corporation; MITSUI
MINING USA INC, a corporation,
Defendants-Appellees.
Do GEUN OH; EUNG CHANG LEE;
YONG HAE LEE, individually and
on behalf of a class of persons
similarly situated,
Plaintiffs-Appellants,
Vv.
MITSUI & Co., LTD, a Japanese
business association; MITSUI &
Co. (USA), a business
association; MITSUBISHI
CORPORATION, a Japanese busi-
ness association; MITSUBISHI
CORPORATION, a business
association; MITSUBISHI HEAVY
INDUSTRIES LTD., a Japanese
business association; MITSUBISHI
HEAVY INDUSTRIES AMERICA, INC.,
No. 01-17243
D.C. No.
CV-00-03586-VRW
No. 01-17251
D.C. No.
CV-00-03752-VRW
69a
a business association;
MITSUBISHI MATERIALS
CORPORATION, a Japanese busi-
ness association; MITSUBISHI
MATERIALS USA CORPORATION, a
business association; NIPPON
STEEL CORP, a Japanese business
association; NIPPON STEEL USA, a
business association; SHOWA
DENKO AMERICA, INC., a business
association; SHOWA KoGyo, a
Japanese business association,
Defendants-Appellees.
GLORIA TYLER ALFANO; MADELINE
FELKINS; WARREN CARRINGER;
HOWARD FRIEDMAN, Dr.; RICHARD
GORDON, Maj.; OAKIE DENT PACK,
on behalf of themselves and all
others similarly situated,
Plaintiffs-Appellants,
Ws
MITSUI & COMPANY (USA), INC.;
MITSUI MINING COMPANY, LTD.;
MITSUI MINING USA INC;
MITSUBISHI CORPORATION, a
corporation; MITSUBISHI
CORPORATION; MITSUBISHI HEAVY
INDUSTRIES AMERICA INC., a
corporation; MITSUBISHI HEAVY
INDUSTRIES, LTD., a corporation,
Defendants-Appellees.
Bi
.
te
i
7
(74
“4
a
By
a
hs
a
4
a
2%
rQ
ty
i.
No. 01-17252
D.C. No.
CV-00-04277-VRW
70a
H. JOSEPH TERRENCE, aka JOSEPH
E. TERFANSKY; FRANKLIN D.
GROSS; FREDERICK M. FULLERTON,
JR.; ERMA L. WEIMER,
Plaintiffs-Appellants,
v.
MITSUI & Co., LTD., a Japanese
business corporation aka Mitsui
Bussan Kaisha; MITSUI &
CoMPANY (USA), INC., a business
association; MITSUI MINING USA
INC, a business association;
MITSUBISHI CORPORATION, a Japa-
nese business association; MITSU-
BISHI MATERIALS
CORPORATION, a Japanese
business association; MITSUBISHI
HEAVY INDUSTRIES, LTD., a
Japanese business association;
MITSUBISHI MATERIALS USA
CORPORATION, a business
association; MITSUBISHI
CORPORATION, a business
association; MITSUBISHI HEAVY
INDUSTRIES AMERICA, INC., a
business association,
Defendants-Appellees.
ARTHUR TITHERINGTON; HENVRY
GEORGE BLACKHAM; FERGUS
DUNSMORE MCGHIE, on behalf of
themselves and others similarly
situated,
Plaintiffs-Appellants,
No. 01-17260
D.C. No.
CV-00-03648-VRW
No. 01-17265
D.C. No.
CV-00-02689-VRW
7la
Ve
JAPAN ENERGY CORP, a Japanese
business association; JAPAN
ENERGY USA, a Delaware
Corporation; IRVINE SCIENTIFIC
SALES, a California Corporation,
Defendants-Appellees.
FINNIE B PRICE, On behalf of
himself and all others similarly
situated,
\
Plaintiff-Appellant,
v.
MITSUBISHI CORPORATION; _
MITSUBISHI HEAVY INDUSTRIES,
LTD., a corporation; MITSUBISHI
HEAVY INDUSTRIES AMERICA INC.;
MITSUBISHI INTERNATIONAL
CORPORATION, a corporation;
MITSUI & Co (USA) INC.; MITSUI
& Co. LTD., a corporation; MITSUI
MINING Co LTD; MITSUI MINING
USA INC, a corporation,
Defendants-Appellees.
No. 01-17499
D.C. No.
CV-00-02761-VRW
OPINION
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
October 7, 2002 — Pasadena, California
Filed January 21, 2003
72a
Before: Stephen Reinhardt, Stephen S. Trott and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Reinhardt
COUNSEL
Nate G. Kraut, Law Offices of Nate G. Kraut, Los Angeles,
California, for plaintiff-appellant Josef Tibor Deutsch.
Joseph W. Cotchett, Bruce L. Simon and Steven N. Wil-
liams, Cotchett, Pitre, Simon & McCarthy, Burlingame,
California; Lourdes Santos Tancinco, Tancinco Law Of-
fices, San Francisco, California, for Saldajeno plaintiffs-
appellants.
Michael E. Withey, Strittmatter, Kessler, Whelan, Withey,
Coluccio, Seattle, Washington, for Santo Domingo plain-
tiffs-appellants.
Robert A. Swift, Denis F. Shiels, Nadia Ezzelarab and Hilary
E. Cohen, Kohn, Swift & Graf, Philadelphia, Pennsylvania;
Jon Van Dyke, Honolulu, Hawaii; Scott W. Wellman, Scott R.
Warren and Mitsuruku Ushida, Wellman & Warren LLP,
Irvine, California; Rodrigo C. Domingo, Domingo & Dizon,
Mikati City, Philippines; Edward D. Fagan, Fagan & Associ-
ates, Livingston, New Jersey; Michael Witti, Law Offices,
Munchen, Germany; Henry Burstyner, Glennen, Burstyner
& Co., Melbourne, Australia, for Resus, Kim, er Mente
and Terrence plaintiffs-appellants.
Steven M. Schneebaum, Esq., Patton Boggs, LLP, Wash-
ington, DC; Ronald Kleinman, Esq., C. Allen Foster, Esq.,
Joe R. Reeder, Esq. and Jessica Valltos, Esq., Greenberg
Traurig, LLP, Washington, DC; David S. Casey, Jr., Esq.,
Bonnie E. Kane, Esq. and Wendy M. Behan, Esq., Her-
man, Mathis, Casey, Kitchens & Gerel, LLP, San Diego,
73a
California; Maury A. Herman, Esq., Leonard A. Davis,
Esq. and David Fox, Esq., Herman, Mathis, Casey, Kitch-
ens & Gerel, LLP, New Orleans, Louisiana; James W.
Kitchens, Herman, Mathis, Casey, Kitchens & Gerel, LLP,
Jackson, Mississippi; James W. Parkinson, Esq., Law
Offices of James W. Parkinson, Palm Desert, California;
Michael Goldstein, Esq., Law Offices of Michael Goldstein,
Cardiff, California; Venus Soltan, Esq., Soltan & Associ-
ates, Costa Mesa, California, for Poole, Loy, Agnes, Clark
and Kellogg, plaintiffs-appellants.
Daniel C. Girard, Girard, Gibbs & De Bartolomeo, LLP,
San Francisco, California; Anthony K. Lee, San Francisco,
California, for King and Levenberg plaintiffs- appellants.
William S. Lerach, Eric A. Isaacson, Frank J. Janecek, Jr.,
Joseph D. Daley and Patrick W. Daniels, Milberg, Weiss,
Bershad, Hynes & Lerach LLP, San Diego, California;
Michael Rubin and Linda Lye, Altshuler, Berzon, Nuss-
baum & Demain, San Francisco, California; Kevin P.
Roddy, Hagens Berman LLP, Los Angeles, California; John
J. Bartko, William I. Edlund and Robert H. Bunzel,
Bartko, Zankel, Tarrant & Miller, San Francisco, Califor-
nia; Albert H. Meyerhoff, Milberg, Weiss, Bershad, Hynes
& Lerach, LLP, Los Angeles, California Li Yang, Law
Offices of Li Yang, New York, NY; Howard D. Finkelstein
and Jeffrey R. Krinsk, Finkelstein & Krinsk, San Diego,
California; Jonathan W. Cuneo, The Cuneo Law Group,
P.C., Washington, DC; Thomas L. Galloway, Galloway &
Associates, Boulder, Colorado; David R. Scott and Neil
Rothstein, Scott & Scott, LLC, Colchester, Connecticut;
Henry H. Rossbacher, Rossbacher & Associates, Los
Angeles, California, for Kim plaintiffs-appellants.
74a
Steve W. Berman and Jeffrey T. Sprung, Hagens Berman
LLP, Seattle, Washington; Kevin P. Roddy, Hagens Ber-
man LLP, Los Angeles, California, for Titherington, Black-
ham and McGhie plaintiffs-appellants. Peter I. Ostroff,
Mark E. Haddad, Lee L. Auerbach, Ronald L. Steiner,
Sarah J. Heidel, Sidley, Austin, Brown & Wood LLP, Los
Angeles, California, for defendants-appellees Nippon
Sharyo Ltd. and Nippon Sharyo U:S.A., Inc.
John H. Beisner and John F. Niblock, O'Melveny & Meyers
LLP, Washington, DC, for defendants-appellees Mitsubishi
Materials Corporation and Mitsubishi Materials U.S.A.
Corporation.
Arne D. Wagner, Morrison & Foerster LLP, for defendants-
appellees Mitsubishi Corporation and Mitsubishi Interna-
tional Corporation.
Matthew Digby, Bingham Dana LLP, for defendants-
appellees Mitsui Mining Co., Ltd., Mitsui Mining U.S.A.,
Inc., Nippon Sharyo U.S.A., Inc., Taiheiyo Cement U.S.A.,
Inc., Japan Energy Corporation, Japan Energy U.S.A.,
Furukawa Electric North America, Inc., and Irvine Scien-
tific Sales Co., Inc.
Sara D. Schotland, Cleary, Gottlieb, Steen & Hamilton, for
defendant- appellee Showa Denko America, Inc.
Arthur W. Harrigan, Jr., Danielson, Harrigan & Tollefson,
LLP, for defendants-appellees Mitsubishi Heavy Indus-
tries, Ltd. and Mitsubishi Heavy Industries America, Inc.
Neil A.F. Popovic, Heller, Ehrman, White & Mcauliffe, for
defendant-appellee Showa Denko America, Inc.
Paul Doyle, Kelley, Drye & Warren LLP, for defendant-
appellee Kreha Corporation of America.
75a
Christopher Landau, Kirkland & Ellis, for defendant-
appellee Sumitomo Heavy Industries (U.S.A.) and Sumi-
tomo Heavy Industries, Ltd.
Douglas E. Mirell, Loeb & Loeb LLP, for defendants-
appellees Taiheiyo Cement U.S.A., Inc., Furukawa Electric
North America, Inc., Japan Energy Corporation, Japan
Energy (U.S.A.), Inc. and Irvine Scientific Sales Co., Inc.
Junji Masuda, Masuda & Byjiri, for defendant-appellee
Japan Energy Corporation, Japan Energy (U.S.A.), Inc.,
and Irvine Scientific Sales Co., Inc.
David M. Balabanian, Christopher B. Hockett, Thomas S.
Hixson and J. Leah Castella, McCutchen, Doyle, Brown &
Enersen, LLP, San Francisco, California, for defendants-
appellees Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.),
Inc.
Barbara Croutch, Pillsbury Winthrop, LLP, Los Angeles,
California, for defendants- appellees Mitsubishi Heavy
Industries America Inc. and Mitsubishi Heavy Industries,
Ltd.
Nathan Lane III and Joseph A. Meckes, Squire, Sanders &
Dempsey LLP, San Francisco, California, for defendants-
appellees Ishihara Corporation (U.S.A.), Ishihara Sangyo
Kaisha, Ltd. and ISK Americas Incorporated.
Margaret K. Pfeiffer, Sullivan & Cromwell, Washington
DC, for defendants-appellees Nippon Steel U.S.A., Inc.,
Nippon Steel Corporation, Nippon Steel Trading America,
Inc. and Nippon Steel Trading Co., Ltd.
Bruce E.H. Johnson, Davis, Wright, Tremaine, for defen-
dants-appellees Mitsubishi Heavy Industries, Ltd. and
Mitsubishi Heavy Industries America, Inc.
76a
A. Victor Antola, Latham & Watkins, for defendants-
appellees Kajima U.S.A., Inc., Kajima International, Inc.,
Kajima Engineering and Construction, Inc., Kajima
Development Corporation and Kajima Construction
Services, Inc.
Lloyd W. Aubry, Jr., Morrison & Foerster, LLP, for defen-
dants-appellees Ishikawajima-Harima Heavy Industries
Co., Ltd. and IHI, Inc.
Cynthia S. Papsdorf and Sheri M. Schwartz, Kelley Drye
& Warren LLP, Los Angeles, California; Bud G. Holman,
Esq., Kelley Drye & Warren LLP, New York, New York, for
defendants-appellees The Turner Corporation and Kitchell
Corporation.
OPINION
REINHARDT, Circuit Judge
Plaintiffs-Appellants in these consolidated cases
allege that they were forced to work as slave laborers for
German and Japanese corporations during the Second
World War. They seek damages and other remedies for lost
wages and for other atrocious injuries they suffered in the
course of their forced labor. Defendants-Appellees are
corporations (or successors or affiliates of those corpora-
tions) that allegedly committed these atrocities.
A California statute passed in 1999 creates a cause of
action against such defendants for claims involving Second
77a
World War slave labor.’ Cal. Code Civ. Proc. § 354.6. Under
the statute, these claims are not time-barred if commenced
on or before December 31, 2010. Jd. Although Appellants
assert a variety of statutory and common law claims for
relief, all raise section 354.6 as the primary basis for
bringing their suits so many years after the alleged
wrongs were committed. Reluctantly, we hold that section
354.6 is invalid under the United States Constitution and
that in its absence Appellants’ remaining claims are time-
barred.
Background
These cases concern the terrible abuses that German
and Japanese corporate interests inflicted both on civilians
and on soldiers captured by German and Japanese mili-
tary forces during the Second World War. The corporations
and their managers, with the cooperation and encourage-
ment of their governments, subjected many individuals to
vicious cruelties and. forced them to work long hours
without pay. The slave workers were often underfed,
physically beaten, exposed to dangerous conditions, and
denied medical care; many were murdered, and others
died as a result of the maltreatment they suffered. Among
these slave laborers were, tragically, many who became
victims of the Holocaust, the most atrocious act ever
perpetrated by a civilized (or uncivilized) people, an act
unparalleled in history. Indeed, the Holocaust represents
* Although the statute distinguishes between “slave laborers,” see Cal.
Code Civ. Proc. § 354.6(aX1), and “forced laborers,” see § 354.6(aX2), the
distinction is generally immaterial to the analysis in this opinion. We
generally use the term “slave laborer” to refer to both categories of workers.
78a
the worst historic manifestation of the perpetual human
condition known as antisemitism, a phenomenon that is
still thriving in all too many parts of the world today.”
I. The Cases
A. Deutsch v. 1urner
The suit by Appellant Josef Tibor Deutsch (“Deutsch”)
is the only action before us concerning wrongs committed
by German rather than Japanese corporations and the
only action that was not consolidated with other cases by
the district court. It is, in other words, the only Holocaust
case at issue here, and it, unlike most of the Japanese
cases, involves only a single plaintiff.
Currently a resident of California, Deutsch, a Jew,
was born and raised in Hungary. Deutsch asserts that, in
1944, when he was a child, the Nazis took over his town
and transported him and his brother Georg to Auschwitz.
There the brothers were tortured and forced to work as
slaves for 14-hour days, seven days a week. Their work
was for the benefit of private corporations, which entered
* It is plainly Holocaust survivors who are the intended beneficiar-
ies of section 354.6, which speaks of “concentration camp(s]” and
“ghettos[s],” [sic] mentions no power by name other than the “Nazi
regime,” and never employs the term “Axis Powers,” which is the usual
- collective term for the enemies of the Allied Powers. Ironically, among
the hundreds of thousands of plaintiffs in the cases before us, there is
only one Holocaust survivor. All the other plaintiffs suffered their
injuries in Asia at the hands of Japanese companies. Whatever the
intended purpose of the California statute, the text of section 354.6
appears to be broad enough to encompass all the plaintiffs’ claims, and
not just those of the one Holocaust survivor. We follow the district court
and all the parties before us in assuming that such is the case.
79a
into agreements with the Nazi government, whereby they
paid the Nazis less than the prevailing wage for the work
of the slaves. The corporations for which the Deutsch
children labored included Appellee Hochtief AG (“Hoch-
tief”), one of Germany’s largest and oldest construction
companies. A civilian employee of Hochtief overseeing the
slave laborers in their work for Hochtief beat Deutsch’s
brother Georg. Georg ultimately died from his injuries. By
a stroke of good fortune, Deutsch, unlike most of his co-
religionists, survived.
On April 7, 2000, Deutsch filed a complaint in the
Superior Court of California against Hochtief, its wholly
owned subsidiary the Turner Corporation, a Delaware
corporation, and the Kitchell Corporation, an Arizona
corporation that Hochtief owns in part. Deutsch alleged
intentional infliction of emotional distress, unlawful
business practices under the California Business and
Professions Code, quantum meruit, and wrongful death.
The action was removed to federal court on the ground of
diversity jurisdiction.
Deutsch’s basis for bringing the action so long after
the alleged acts is section 354.6 of the California Code of
Civil Procedure, which confers jurisdiction on the Superior
Court to hear claims by “[a]ny Second World War slave
labor victim” or “Second World War forced labor victim,” or
their heirs, against “any entity or successor in interest
thereof, for whom that labor was performed, either directly
or through a subsidiary or affiliate.” Cal. Code Civ. Proc.
§ 354.6(b). Section 354.6 permits such actions to be
brought on or before December 31, 2010, regardless of any
otherwise applicable statute of limitations. § 354.6(c).
80a
The district court dismissed the action as presenting a
nonjusticiable political question. Deutsch v. Turner, No. CV
00-4405 (C.D. Cal. Aug. 25, 2000).
B. In re World War II Era Japanese Forced
Labor Litigation
The consolidated appeal before us also involves 28
other suits, all by victims and heirs of victims against
Japanese business entities. Some were brought as class
actions. Because there are so many complaints, and
because the precise factual allegations do not bear on our
decision, we do not here recount the details of the injuries
that the various Appellants endured. Unlike Deutsch,
these individuals — some civilians, some soldiers who were
prisoners of war — were not selected because of their
religious affiliation and were not victims of an overall plan
to exterminate an ethnic or religious group. Rather, they
became subject to the Japanese slave labor program either
because they opposed the Japanese war efforts, in one
capacity or another, or simply because they were in the
wrong place at the wrong time. In any event, they were all
subjected to serious mistreatment, including starvation,
beatings, physical and mental torture, being transported
in unventilated cargo holds of ships, and being forced to
make long marches under a tropical sun without water.
Some survived, while others were ultimately executed, or
died from disease or physical abuse.
Twenty-seven of the suits against the Japanese
corporate interests were originally brought in California
Superior Court, while one was initiated in the United
States District Court for the Central District of California.
The claimants demanded damages and other relief, raising
8la
claims under California Code of Civil Procedure section
354.6, and alleging, variously, assault and battery, unjust
enrichment, conspiracy, false imprisonment, intentional
infliction of emotional distress, conversion, quantum
meruit, unfair business practices under California Busi-
ness and Professions Code sections 17200 et seqg., involun-
tary servitude under California Penal Code section 181
and Article I, §6 of the California Constitution, and
violations of international law under the Alien Tort Claims
Act, 28 U.S.C. § 1350. As defendants they name both
Japanese corporations that they allege committed the
injuries and successors and affiliates of those corporations.
The suits filed in state court were removed to federal
court; all were then consolidated in the Northern District
of California. The district court denied motions to remand
and dismissed all claims.
Appellants in the majority of the Japanese cases were,
at the time of the occurrences that form the basis for these
lawsuits, nationals of the United States or of other Allied
nations. Many were in military service and were taken as
prisoners of war. The district judge dismissed these cases
on the ground that they were barred by a provision of the
Treaty of Peace ending the war between the Allied Powers
and Japan.’ In re World War II Era Japanese Forced Labor
* The provision that had this effect is Article 14(b), which provides
as follows:
Except as otherwise provided in the present Treaty, the Al-
lied Powers waive all reparations claims of the Allied Pow-
ers, other claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals
in the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation.
(Continued on following page)
82a
Litig., 114 F. Supp.2d 939, 944-49 (N.D. Cal. 2000) ( Forced
Labor (Allied I) ); In re World War II Era Japanese Forced
Labor Litig., No. MDL-1347 (N.D. Cal. Feb. 8, 2001)
(Forced Labor (Allied II) ); In re World War II Era Japa-
nese Forced Labor Litig., 164 F. Supp. 2d 1153, 1157 (N.D.
Cal. 2001) (Forced Labor (Filipinos)).
Appellants in the remaining cases were Korean and
Chinese nationals. The district court held that their claims
were not affected by the Treaty of Peace between the Allies
and Japan, because these claimaints were not Allied nation-
als or nationals of any signatory of that treaty. In re World
War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d
1160, 1165-68 (N.D. Cal. 2001) (Forced Labor (Koreans)). The
court dismissed these cases nonetheless, on the grounds that
section 354.6 was an unconstitutional intrusion on the
foreign affairs powers of the United States, and that the
remaining claims were time-barred. Id. at 1168-78.
II. Constitutionality of Section 354.6 Under
Foreign Affairs Doctrine
A. Section 354.6 and Its Effect
All Appellants rely on section 354.6 of the California
Code of Civil Procedure. Because it can best be understood
when read as a whole, we quote it in full:
Treaty of Peace with Japan, Sept. 8, 1951, art. 14(b), 3 U.S.T. 3169, T.LAS.
No. 2490. The district court held that claims by Allied uativnals against
Japanese corporations were barred under the clause waiving “other claims
of the Allied Powers and their nationals arising out of any actions taken by
Japan and its nationals in the course of the prosecution of the war.” Forced
Labor (Allied I), 114 F. Supp. 2d at 944-49 (N.D. Cal. 2000).
83a
§ 354.6.
(a) As used in this section:
(1) “Second World War slave labor vic-
tim” means any person taken from a concen-
tration camp or ghetto or diverted from
transportation to a concentration camp or from
a ghetto to perform labor without pay for any
period of time between 1929 and 1945, by the
Nazi regime, its allies and sympathizers, or
enterprises transacting business in any of the
areas occupied by or under control of the Nazi
regime or its allies and sympathizers.
(2) “Second World War forced labor vic-
tim” 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 business in any of
the areas occupied by or under control of the
Nazi regime or its allies and sympathizers.
(3) “Compensation” means the present
value of wages and benefits that individuals
should have been paid and damages for inju-
ries sustained in connection with the labor per-
formed. 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 post-war
currency devaluation.
84a
(b) Any Second World War slave labor vic-
tim, or heir of a Second World War slave labor
victim, Second World War forced labor victim, or
heir of a Second World War forced labor victim,
may bring an action to recover compensation for
labor performed as a Second World War slave la-
bor victim or Second World War forced labor vic-
tim from any entity or successor in interest
thereof, for whom that labor was performed, ei-
ther directly or through a subsidiary or affiliate.
That action may be brought in a superior court of
this state, which court shall have jurisdiction
over that action until its completion or resolu-
tion.
(c) Any action brought under this section
shall not be dismissed for failure to comply with
the applicable statute of limitation, if the action
is commenced on or before December 31, 2010.
Appellants and the State of California as amicus seek
to characterize section 354.6 as a purely procedural
measure by reducing its scope to the provision regarding
the limitations, as set forth in subsection (c). The entire
effect of section 354.6, they argue, is to extend the statute
of limitations for claims that are already available to
remedy Nazi-era slave labor. They cite an impressive
range of possible sources of substantive law prohibiting
slave labor, including state statutes and common law, the
United States Constitution, and international law. The
reference in subsection (c) to “the applicable statute of
limitations” supports their interpretation: If a statute of
limitations is already “applicable,” perhaps it is because
subsection (c) contemplates a pre-existing cause of action,
rather than a cause of action created under section 354.6.
85a
However, section 354.6 can be viewed as purely
procedural only when subsection (c) is viewed in isolation
from the rest of the provision. Most important, the first
sentence of subsection (b) explicitly creates a cause of
action by providing that certain individuals “may bring an
action” for certain wrongs. See Verizon Md. Inc. v. Pub.
Serv. Comm’n, 535 U.S. 635, ___, 122 S. Ct. 1753, 1759
(2002) (noting that language in a statute providing that
party “may bring an action” “reads like the conferral of a
private right of action”). Appellants’ recitation of pre-
existing causes of action for slave labor, whether under
other statutes or other bodies of law, is therefore fruitless.
Regardless of any pre-existing law, the California legisla-
ture chose to create a specific cause of action for persons
subjected to slave labor by the Nazis and their allies and
sympathizers. If confirmation of this reading is required, it is
found in those passages of section 354.6 that set forth the
details of the new cause of action. The section defines the
class of plaintiffs who may sue under that cause of action, see
§ 354.6(a)(1), (2), sets the method for measuring damages, see
§ 354.6(a)(3), and establishes a special rule regarding liabil-
ity of corporations affiliated with the wrong-doer, see
§ 354.6(b). Even the language of the statute of limitations
provision itself limits the application of the statute of limita-
tions to “action[s] brought under this section,” thus confirm-
_ ing that section 354.6 creates a cause of action.
Appellants’ only remaining argument for the proce-
dural nature of section 354.6 is its placement within the
Code of Civil Procedure, in Title Two: Time of Commencing
Civil Actions. However, where the meaning of a statutory
provision is clear, we do not rely upon the location the
legislature chose for it in its system of codification, see
Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111
86a
F.3d 1322, 1328 (7th Cir. 1997), just as we do not rely upon
the headings and titles of sections in such circumstances.
Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R.,
331 U.S. 519, 528-29 (1947). The reason for the placement
of section 354.6 within the procedural code is, in any
event, not difficult to explain: The most striking aspect of
the section is, indeed, its statute of limitations, which
would allow the commencement of a suit mure than 60
years after the occurrence of the injury. Jd. Section 354.6’s
placement, therefore, does not change our view that the
section is substantive in nature.
The parties debate whether section 354.6 is substan-
tive or procedural primarily in the context of the Appellees’
due process challenge, which we do not address. The
substantive nature of the provision, however, is relevant
also to the foreign affairs doctrine analysis in which we
engage below, because a state is more likely to exceed the
limits of its power when it seeks to alter or create rights
and obligations than when it seeks merely to further
enforcement of already existing rights and duties. Because
section 354.6 is substantive law, we do not have occasion
to address whether the extension of the statute of limita-
tions, without more, would be legally permissible.‘
* Even if it were merely procedural, section 354.6 would go further
than merely extending the statute of limitations for existing claims; it
would actually revive claims that had been previously time-barred, thus
upsetting the repose of potential defendants. This revival of liability —
even civil liability — is troubling. We do not address here whether such
a revival violates due process.
-
87a
B. Foreign Affairs Doctrine Analysis
Appellees argue that section 354.6 exceeds California’s
power to engage in foreign affairs. We agree.”
The Constitution does not create an express, general
power over foreign affairs but rather allocates particular
powers related to foreign affairs to particular federal
actors. It appoints the President as “Commander in Chief
of the Army and Navy of the United States,” U.S. Const.,
art. II, § 2, cl. 1, and authorizes him to “make Treaties,
provided two thirds of the Senators present concur,” to
“appoint Ambassadors” with the “Advice and Consent of
the Senate,” id. cl. 2, and to “receive Ambassadors and
other public Ministers,” id. § 3. {t grants to Congress the
power to “lay and collect .. . Duties, Imposts, and Excises,”
to “provide for the common Defence,” id. art. I, § 8, cl. 1, to
“regulate Commerce with foreign Nations,” id. art. I, § 8,
cl. 3, to “establish an uniform Rule of Naturalization,” id.
cl. 4, to “define and punish Piracies and Felonies commit-
ted on the high Seas, and Offences against the Law of
Nations,” id. cl. 10, to “declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Cap-
tures on Land and Water,” id. cl. 11, to “raise and support
Armies,” id. cl. 12, to “provide and maintain a Navy,” id. cl.
13, and to regulate “the land and naval forces,” id. cl. 14.
While the Constitution allocates these foreign affairs
powers specifically to the federal government, it also
expressly prohibits the states from exercising certain
foreign relations powers, including both some of those
* Some Appellants assert that federal jurisdiction is lacking over
their claims. We address that issue below.
88a
expressly allocated to the federal government and a few
others. “No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal” or,
without consent of Congress, “lay any Imposts or Duties on
Imports or Exports,” “keep Troops or Ships of War in time
of Peace,” “enter into any Agreement or Compact ... with
a foreign Power,” or “engage in War, unless actually
invaded.” Jd. § 10.
Because the Constitution mentions no general foreign
affairs power, and because only a few specified powers
related to foreign affairs are expressly denied the states,
one might assume that, with certain exceptions, states are
free to pursue their own foreign policies. This is not,
however, the case. To the contrary, the Supreme Court has
long viewed the foreign affairs powers specified in the text
of the Constitution as reflections of a generally applicable
constitutional principle that power over foreign affairs is
reserved to the federal government. The Court has some-
times expressed this principle in expansive terms, declar-
ing, for example, that “[p]ower over external affairs is not
shared by the States; it is vested in the national govern-
ment exclusively.” United States v. Pink, 315 U.S. 203, 233
(1942); see also Chae Chan Ping v. United States, 130 U.S.
581, 606 (1889) (The Chinese Exclusion Case) (“For local
interests the several States of the Union exist, but for
national purposes, embracing our relations with foreign
nations, we are but one people, one nation, one power.”).
The implication of the general principle is that “even
in [the] absence of a treaty” or federal statute, a state may
violate the constitution by “establishfing] its own foreign
|
89a
policy.” Zschernig v. Miller, 389 U.S. 429, 441 (1968).
Zschernig concerned an Oregon statute that provided for
escheat of estate property claimed by a nonresident alien
unless United States citizens had reciprocal rights in the
country of the alien’s residence and foreign heirs in that
country would have the right to receive the proceeds of
Oregon estates without confiscation. Id. at 430-31. The
Court held that, while a reciprocity statute of this sort was
not facially invalid, probate courts applying it impermissi-
bly relied on
inquiries into the type of governments that ob-
tain in particular foreign nations — whether
aliens under their law have enforceable rights,
whether the so-called “rights” are merely dispen-
sations turning upon the whim or caprice of gov-
ernment officials, whether the representation of
consuls, ambassadors, and other representatives
of foreign nations is credible or made in good
faith, whether there is in the actual administra-
tion in the particular foreign system of law any
element of confiscation.
Id. at 434. In short, the Court found that the application of
the statute depended less on an evaluation of the stated
law of a particular country than on whether that country’s
political system was legitimate in the view of the Oregon
courts. See id. at 440 (noting that state courts had held
that communist and fascist countries did not grant rights
* The doctrine has been referred to as “dormant foreign affairs
preemption,” or simply as “the foreign affairs power.” See Gerling
Global Reinsurance Corp. of Am. v. Low, 240 F.3d 729, 751 n.9 (9th Cir.
2001) (internal quotation marks removed), cert. granted sub nom. Am.
Ins. Ass’n v. Low, 71 U.S.L.W. 3373 (2003).
90a
reciprocal to those of Oregonians). To condition the appli-
cation of state law on the political system of a foreign
country was “an intrusion by the State into the field of
foreign affairs which the Constitution entrusts to the
President and the Congress.” Id. at 432.
Despite the broad language of Pink and the Chinese
Exclusion Case, however, Zschernig is “[t]he only case in
which the Supreme Court has struck down a state statute
as violative of the foreign affairs power.” Int'l Ass’n of
Indep. Tanker Owners v. Locke, 148 F.3d 1053, 1069 (9th
Cir. 1998), rev’d in part on other grounds sub nom. United
States v. Locke, 529 U.S. 89 (2000). Zschernig has been
applied sparingly, because the Supreme Court has held
that a statute does not violate the constitution where it
merely has “some incidental or indirect effect in foreign
countries.” Clark v. Allen, 331 U.S. 503, 517 (1947) (up-
holding facially a statute similar to that subsequently
struck as applied in Zschernig ).’
Noting that “the federal government’s foreign affairs
power ... . is rarely invoked by the courts,” we have
declined to invalidate under Zschernig a California statute
with certain superficial similarities to section 354.6.
" Other courts have, however, invalidated statutes under foreign
affairs doctrine. See, e.g., Nat'l Foreign Trade Council v. Natsios, 181
F.3d 38, 49-61 (1st Cir. 1999) (invalidating Massachusetts law restrict-
ing ability of Massachusetts and its agencies to purchase goods or
services from individuals or companies engaged in business with
Burma), aff’d on other grounds sub nom. Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363 (2000); Springfield Rare Coin Galleries, Inc. v.
Johnson, 115 Ill. 2d 221, 236-37 (1986) (invalidating state statute
excluding South African coins from otherwise generally applicable state
tax exemptions).
9la
Gerling Global Reinsurence Corp. of Am. v. Low, 240 F.3d
739, 752 (9th Cir. 2001), cert. granted sub nom. Am. Ins.
Ass’n v. Low, 71 U.S.L.W. 3373 (2003). Gerling concerned
California’s Holocaust Victim Insurance Relief Act, Cal.
Ins.Code §§ 13800-13807 (“HVIRA”), which requires
insurers doing business in California to file certain infor-
mation about any insurance policies that they or compa-
nies “related” to them sold in Europe and that were in
effect between 1920 and 1945. Id.; see Gerling, 240 F.3d at
743, 753. While recognizing tha, HVIRA involved foreign
affairs, we held that it was constitutional because of the
combination of two factors: first, “HVIRA, on its face,
involves commerce alone” — and thus should be considered
under the Supreme Court’s foreign commerce cases rather
than under the foreign affairs cases; and second, HVIRA “is
not, on its face, directed at any particular foreign country” —
and thus is comparatively unlikely to interfere with the
foreign relations of the federal government. Jd. at 753.
While Gerling shows that the general prohibition
against state involvement with external affairs is not as
broad as some judicial statements would imply, it also
suggests a mode of analysis that is relevant to the cases
before us. In particular, Gerling distinguishes among
statutes according to the foreign affairs functions that
they implicate. Gerling suggests that statutes that “mainly
involve foreign commerce” are among those least likely to
be held invalid under the foreign affairs power. Jd. The
regulation of commerce is simply not central to the foreign
affairs power that is off limits to states.° For present
* State regulation of foreign commerce might, however, exceed
constitutional limitations under other constitutional doctrines. See, e.g.,
(Continued on following page)
ne Ae AE en eee ee
92a
purposes, we must consider the importance to foreign
affairs analysis of another subset of foreign affairs powers:
the power of the federal government to make and to
resolve war, including the power to establish the procedure
for resolving war claims.
While neither the Constitution nor the courts have
defined the precise scope- of the foreign relations power
that is denied to the states, it is clear that matters con-
cerning war are part of the inner core of this power. Of the
eleven clauses of the Constitution granting foreign affairs
powers to the President and Congress, see supra, seven
concern preparing for war, declaring war, waging war, or
settling war.’ Most of the Constitution’s express limitations
on states’ foreign affairs powers also concern war.” Even
those foreign affairs powers in the Constitution that do not
expressly concern war and its resolution may be under-
stood, in part, as a design to prevent war. Indeed, as the
Federalist shows, supporters of the new Constitution
Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 328 (1994)
(considering whether state’s international tax reporting system violated
either dormant commerce clause or federal government’s ability to
speak in “one voice.”)
* See U.S. Const., art. II, § 2, cl. 1 (making President Commander
in Chief); id. cl. 2; (authorizing President to make treaties with advice
and consent of Senate); id. art. I, § 8, cl. 1 (authorizing Congress to
“provide for the common Defence”); id. cl. 11 (authorizing Congress to
declare war); id. cl. 12 (authorizing Congress to raise and support
armies); id. cl. 13 (authorizing Congress to “provide and maintain a
Navy”); id. cl. 14 (authorizing Congress to regulate “the land and naval
forces”).
* See id. §10 (prohibiting states from entering “any Treaty,
Alliance, or Confederation,” or, without congressional authorization,
from “keep[ing] Troops or Ships of War in time of Peace” and from
“engag{ing] in War, unless actually invaded.”)
93a
believed that disunity in international affairs risked
unnecessary war. See, e.g., THE FEDERALIST, No. 3, at 13
(Clinton Rossiter ed., 1961) (“[Flewer just causes of war
will be given by the national government, [and] it will also
be more in their power to accommodate and settle them
amicably.”). The Supreme Court cases under the foreign
affairs power have also been driven, in part, by this
concern. Thus the inheritance provision at issue in
Zschernig, although superficially unrelated to war, was
seen by a Court operating at the height of the Cold War as
a potential provocation to foreign powers. “ ‘Experience has
shown,’” the Court wrote in striking the provision, “‘that
international controversies of the gravest moment, some-
times even leading to war, may arise from real or imagined
wrongs to another’s subjects inflicted, or permitted, by a
government.” 389 U.S. at 441 (quoting Hines v. Davidowitz,
312 U.S. 52, 64 (1941)). Matters related to war are for the
federal government alone to address.
Among the six district court decisions we review here,
the only one to reach the foreign affairs challenge to
section 354.6 held that the provision was unconstitutional
under that doctrine for six reasons:
(1) the terms of section 354.6 and its legislative
history demonstrate a purpose to influence for-
eign affairs directly, (2) the statute targets par-
ticular countries, (3) the statute does not
regulate an area that Congress has expressly
delegated to states to regulate, (4) the statute es-
tablishes a judicial forum for negative commen-
tary about the Japanese government and
Japanese companies, (5) the Japanese govern-
ment asserts that litigation of these claims could
complicate and impede diplomatic relationships
of the countries involved, and (6) the United
94a
States, through the State Department, contends
that section 354.6 impermissibly intrudes upon the
foreign affairs power of the federal government.
Forced Labor (Koreans), 164 F. Supp. 2d at 1173. Although
we agree that section 354.6 violates the foreign affairs
power, we base our holding on a narrower consideration.
We hold that section 354.6 is impermissible because it
intrudes on the federal government’s exclusive power to
make and resolve war, including the procedure for resolv-
ing war claims.
With section 354.6, California seeks to redress wrongs
committed in the course of the Second World War. By its
terms, only “Second World War slave labor victims” and
“Second World War forced labor victims” can fring suit
under the provision. § 354.6(b). The wrong-doers under the
statute — the enslaving individuals or entities — include
“the Nazi regime, its allies and sympathizers, or enter-
prises transacting business in any of the areas occupied by
or under control of the Nazi regime or its allies or sympa-
thizers.” § 354.6(a)(1), (2). The governmental entities are,
by definition, wartime enemies of the United States, while
the “enterprises” identified in the provision, if not them-
selves our wartime enemies, were operating in enemy
territory and presumably — no party disputes this — with
the consent and for the benefit of our wartime enemy.
Wrongs committed after the end of the war are not cogni-
zable under section 354.6; the provision concerns only acts
that took place during the years leading up to the war and
during the years of the war itself. Id. In short, California
has sought to create its own resolution to a major issue
arising out of the war — a remedy for wartime acts that
California’s legislature believed had never been fairly
resolved.
95a
The United States has already exercised its own
exclusive authority to resolve the war, including claims
arising out of it. It did not choose, however, to incorporate
into that resolution a private right of action against our
wartime enemies or their nationals. The United States
resolved the war against Germany by becoming a party to
a number of treaties and international agreements,
beginning with the 1945 agreements at Yalta and Pots-
dam, in which the United States, Britain, and the Soviet
Union agreed to extract reparations from Germany and its
nationals but did not include a private right of action
against either. See Protocol of the Proceedings, Berlin
(Potsdam) Conference, Aug. 2, 1945, art. (B)(111), 3
Bevans 1207. Subsequent agreements also failed to create
a private right of action, including the Paris Reparations
Treaty of 1946 between the United States and 17 other
nations, Agreement on Reparations From Germany, Jan.
14, 1946, 61 Stat. 3157, T.I.A.S. 1655 (“Paris Reparations
Treaty”); the Transition Agreement of 1952 between the
Western Powers and.the Federal Republic of Germany,
Convention Between the United Kingdom of Great Britain
and Northern Ireland, France, the United States of Amer-
ica and the Federal Republic of Germany on the Settle-
ment of Matters Arising Out of the War and the
Occupation, May 26, 1952 (as amended by Schedule IV to
the Protocol on the Termination of the Occupation Regime
in the Federal Republic of Germany, Oct. 23, 1954), 6
U.S.T. 4117, 331 U.N.T.S. 219; the London Debt Agree-
ment of 1953 between the United States and 20 other
nations, Agreement on German External Debts, Feb. 27,
96a .
1953, 4 U.S.T. 443, 333 U.N.T.S. 3; and the Two-Plus-Four
Treaty, which reunified Germany and became effective on
March 15, 1991, Treaty on the Final Settlement with
Respect to Germany, Sept. 12, 1990, 29 I.L.M. 1186.” Most
recently, the Foundation Agreement of July 17, 2000, an
executive agreement between the governments of Ger-
many and the United States, provided a limited form of
remedy for claimants such as Deutsch. Agreement Be-
tween the Government of the United States of America
and the Government of the Federal Republic of Germany
Concerning the Foundation “Remembrance, Responsibility
and the Future.” The Foundation was created by Germany,
‘in negotiation with the United States, five Central and
" For useful and accessible surveys of these agreements as they
apply to war reparations, see Iwanowa v. Ford Motor Co., 67 F. Supp.
2d 424, 448-56 (D.N.J. 1999), and Burger-Fischer v. DeGussa AG, 65 F.
Supp. 2d 248, 265-73 (D.N.J. 1999). The district court in Deutsch relied
heavily on these cases and adopted their conclusion that Deutsch’s
claim raised a nonjusticiable political question, Deutsch, No. CV 00-
4405, at 2-6, a conclusion with which we disagree. The district court
determined that the postwar agreements created the exclusive remedy
to the matters raised by Deutsch, and that to order relief would
therefore require the court to interfere with the foreign affairs choices
of the political branches. Jd. Under political question doctrine, the court
noted, it is impermissible for a court to make policy related to foreign
affairs. Id. at 2 (citing Baker v. Carr, 369 U.S. 186, 211 (1962)). There-
fore, the district court supposed, Deutsch raised a nonjusticiable
political question. The problem with this argument is that it makes
every dispute over the proper application of a treaty into a political
question, because treaties inherently involve foreign affairs. No
political question, however, is raised by the simple application of the
requirements of a treaty to which the United States is a party. Treaties
have the force of law, see Missouri v. Holland, 252 U.S. 416 (1920), and,
if they are self-executing or have been implemented through legislation,
must be applied by the courts. See United States v. Alvarez-Machain,
504 U.S. 655, 667 (1992).
97a
Eastern European countries, Israel, and the non-
governmental Conference on Jewish Material Claims
Against Germany, for the purpose of making payments to
people who suffered at the hands of German companies
during the Nazi Era. It provides for payment of up to
15,000 German Marks (roughly $7500) to individual
claimants who were subjected to forced labor. See id. at
Annex A. We do not have the authority to consider the
adequacy of such payments here. Indeed, we acknowledge
that no possible compensation could be sufficient to remedy
the harm done to Holocaust victims and their families.
No party argues that any of these agreements pro-
vides the authority for a state of the United States to
create a private right of action enabling individuals to
recover for wartime injuries against German corporations.
Deutsch argues, however, that the terms of these various
agreements do not prohibit a state from creating such a
right of action, and that in the absence of such a prohibi-
tion, his action may proceed. Deutsch’s argument cannot
carry the day. As we explained earlier, the Constitution
allocates the power over foreign affairs to-the federal
government exclusively, and the- power to make and
resolve war, including the authority to resolve war claims,
is central to the foreign affairs power in the constitutional
design. In the absence of some specific action that consti-
tutes authorization on the part of the federal government,
states are prohibited from exercising foreign affairs
powers, including modifying the federal government’s
resolution of war-related disputes.
The war with Japan ended with the Treaty of Peace,
signed in San Francisco, on September 8, 1951, by the
representatives of the United States and 47 other Allied
powers and Japan, and ratified by the United States
98a
Senate on April 28, 1952. Treaty of Peace with Japan,
Sept. 8, 1951, 3 U.S.T. 3169, T.I.A.S. No. 2490. Although
the parties dispute whether that treaty by its own terms
precludes the claims brought by any of the Appellants,”
that is the only dispute regarding the treaty. No party
asserts that the treaty either creates — explicitly or implic-
itly — a private right of action against Japan or its nation-
als, or authorizes states of the United States to create
such a right.” Once again, without such authorization,
” The central disagreement concerns the meaning of Article 14(b)
of the treaty, which is quoted in full supra note 3. The district judge
held that Appellants’ claims were waived because they are claims of
Allied nationals “arising out of actions taken by [Japanese] nationals in
the course of the prosecution of the war.” Id.; Forced Labor (Allied D,
114 F. Supp. 2d at 944-49. Appellants argue that the actions of the
Appellee corporations were not taken “in the course of the prosecution
of the war,” or that it is an issue of fact whether they were or not.
* Appellants do assert that, if Article 14 of the treaty waives
claims against Japanese nationals, as Appellees assert, then Article 14
is superceded [sic] by Article 26. Article 26 provides, in pertinent part:
Should Japan make a peace settlement or war claims settle-
ment with any State granting that State greater advantages
than those provided by the present Treaty, the same advan-
tages shall be extended to the parties to the present Treaty.
Treaty of Peace with Japan, at art. 26. Appellants argue that other
foreign states have entered into agreements with Japan that do not
waive private claims and that those agreements thereby extend to those
foreign states “greater advantages” than the terms extended to the
United States. The district court found that Article 26 confers rights
only on the “parties” to the treaties, not on individuals. Forced Labor
(Allied I), 114 F. Supp. 2d at 949. We agree, at least as to the right to
invoke the clause. It is the prerogative of the United States, not of
California or of Appellants, to determine whether a foreign state has
been granted greater advantages and, if so, whether it is in the interest
of the United States to incorporate those advantages (along with any
concomitant lesser disadvantages) into the treaty. The United States
(Continued on following page)
. 99a
states lack the power to alter the federal government’s
resolution of disputes relating to the war.”
The grievances of at least one class of potential plaintiffs
identified in section 354.6, prisoners of war, were addressed
by the federal government in domestic legislation. See
§ 354.6(a\(2). Under the War Claims Act of 1948, 50 U.S.C.
app. §§ 2001-2017p, assets seized from Germany, Japan, or
their nationals within the United States and its territory
were used to compensate American prisoners of war whose
rights had been violated. See U.S. FOREIGN CLAIMS SETTLE-
MENT COMMISSION, SETTLEMENT OF CLAIMS BY THE FOREIGN
CLAIMS SETTLEMENT COMMISSION FROM SEPTEMBER 14, 1949
TO MARCH 31, 1955, at 10-11 (1955); 50 U.S.C. app.
§ 2005(d)(2A). The Act required prisoners of war to submit
their claims to a federal agency, whose decision was final; it
conceived of no private right of action against German or
Japanese entities. See 50 U.S.C. app. § 2010.
California was dissatisfied with how the federal
government chose to address the various wartime injuries
suffered by victims of the Nazis and their allies after the
United States brought the Second World War to a close.
The California legislature found that, under the treaties
and compensatory programs that the federal government
has not invoked Article 26 to authorize a private right of action.
Appellants’ reliance on the article is, therefore, unavailing.
“ It is immaterial that many of the Appellants are nationals of two
nations, China and Korea, that were not signatories of the San Fran-
cisco treaty. When the United States has been a party to a war, the
resolution it establishes to that war is the resolution for the whole of
the United States. States lack the power to modify that resolution,
regardless of the citizenship of those seeking redress.
100a
had established, “victims of Nazi persecution have been
deprived of their entitlement to compensation for their
labor and for injuries sustained while performing that
labor as forced or slave laborers prior to and during the
Second World War.” 1999 Cal. Stat. 216, § 1(b) (codified in
notes to Cal. Code Civ. Proc. § 354.6). The state legislature
therefore enacted section 354.6 to remedy these 54-year- -
old injuries in a manner favored by California but not
provided for by the federal government. Appellants assert
that no international agreement or other federal action
prohibits California from doing so. However, as we have
stated, because the issue is the lack of state power, it is
immaterial whether the federal government enacted a
prohibition. The federal government, acting under its
foreign affairs authority, provided its own resolution to the
war; California has no power to modify that resolution.”
* One might argue that the Holocaust was distinct from the
German war effort, that claims for injuries arising from the Holocaust
do not, therefore, relate to the war, and that such injuries, because they
are unrelated to the war, do not implicate the war powers of the federal
government. We need not assume that the acts of enslavement encom-
- passed by section 354.6 served military purposes or advanced the war
effort of the Nazis or their allies. We simply note that, by its terms,
section 354.6 creates a right of action only for “Second World War” slave
labor victims. For the purposes of the provision, the California legisla-
ture explicitly defined the harms suffered by such victims as pertaining
to the war. Moreover, the federal government’s exclusive power to
resolve the war necessarily includes an exclusive power to address the
injuries that section 354.6 attempts to remedy. The treaties themselves
confirm that the federal government regarded all wartime injuries as
matters integral to peacemaking, regardless of the purpose or effect of
the wrong-doer’s acts. In the Paris Reparations Treaty, for example, the
United States and the other signatories “agree[d] among themselves
that their shares of reparation, as determined by the present Agree-
ment, shall be regarded by each of them as covering all its claims and
(Continued on following page)
10la
Before concluding our discussion of this issue, we
must consider Appellants’ most vigorous argument in favor
of the constitutionality of section 354.6: that the provision
“presents striking parallels’ to HVIRA, the insurance
reporting requirement that we upheld in Gerling. Appel-
lants correctly note two points of similarity: first, like
section 354.6, HVIRA is related to Nazi-era wrongs;
second, as under section 354.6, at least as applied to the
cases before us, the parties regulated by HVIRA are
businesses. The similarity ends there, however. Unlike
section 354.6, HVIRA does not attempt to require the
affected businesses to compensate victims for past wrongs:
Specifically, as we noted in Gerling, HVIRA does not
impose obligations on “European insurance companies to
pay or not to pay claims on European policies.” Gerling,
240 F.3d at 745 (internal quotation marks removed).
HVIRA, rather, is merely a reporting requirement and the
only consequence of noncompliance is the inability to do
business in California in the future. Jd. Whereas section
354.6 seeks to provide a monetary remedy for decades-old
wartime wrongs, HVIRA is a forward-looking regulatory
statute. * In short, unlike section 354.6, HVIRA does not
those of its nationals against the former German Government and its
Agencies, of a governmental or private nature arising out of the war.”
Paris Reparations Treaty, Jan. 14, 1946, art. 2(A), 61 Stat. 3157, 3163;
see also, e.g., Treaty of Peace with Hungary, Feb. 10, 1947, art. 36(4), 61
Stat. 2109, 2126 (bilateral treaty between Allied Powers and Hungary)
(“Hungary waives on its own behalf and on behalf of Hungarian
nationals all claims against Germany and German nationals out-
standing on May 8, 1945, except those arising out of contracts and other
obligations entered into, and rights acquired, before September 1,
1939.”).
* Appellants in Gerling originally challenged two other statutes
that did attempt to force payment of Nazi-era insurance claims, see Cal.
(Continued on following page)
102a
attempt to hold defendants liable for their past wartime
conduct; it therefore does not implicate the exclusive power
of the federal government to make and resolve war, including
the resolution of claims arising out of such actions.
Because California lacks the power to create a right of
action for war-related claims against our former enemies
and those who operated in their territories, and section
354.6 runs afoul of the restriction on the exercise of foreign
affairs powers by the states, we hold that section 354.6 is
unconstitutional.
III. Statutes of Limitations
In addition to section 354.6, Appellants bring various
tort claims under common law, California statutory and
constitutional law, as well as for violations of international
law under the Alien Tort Claims Act, 28 U.S.C. § 1350
(“ATCA”). See supra. All these claims are barred by their
respective statutes of limitations.
Appellants apparently bring their common law claims
under California law, although in many instances they do
not identify the jurisdiction under whose law they seek
relief. Some of the parties, including both defendants and
plaintiffs, are California residents, while others are not;
the alleged injuries all took place outside of California.
Regardless of the source of the substantive law, because all
Code Civ. Proc. § 354.5; Cal. Ins. Code § 790.15, but those claims were
dismissed for lack of standing and not addressed on appeal. Gerling,
240 F.3d at 745; see also Gerling Global Reinsurance Corp. of Am. uv.
Low, 296 F.3d 832, 842 & n.7 (9th Cir. 2002), cert. granted sub nom. Am.
Ins. Ass’n v. Low, 71 U.S:L.W. 3373 (2003).
103a
the claims, including both common law and statutory, were
brought in California state court or in a district court
within California, we apply to them the statute of limita-
tions that would be applied in California state court.”
California applies the “governmental interest” approach to
conflict of law issues. Hurtado v. Superior Court, 11 Cal.
3d 574, 579-80 (1974). Under this approach, the correct
choice of law depends on “an analysis of the respective
interests of the states involved.” Jd. at 579. Where the
conflict concerns a statute of limitations, the governmental
interest approach generally leads California courts to
apply California law. Witkin, 3 CALIFORNIA PROCEDURE
§ 104 (4th ed. 1996); see
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