Opposition Brief — Hwang Geum Joo v. Japan

6

clearly aimed at resolving all war claims against Japan,” the

court held that “[t]here is no question that this court is not the

appropriate forum in which plaintiffs may seek to reopen

those discussions nearly half a century later.” /d. at 67a.

Rather, petitioners’ claims were matters to be addressed

solely “at the government-to-government level.” /d. at 68a.

D.C. Circuit Decisions. Petitioners appealed that

judgment. The D.C. Circuit first affirmed the dismissal of

the complaint on the single ground (which the District Court

had not reached) that the FSIA’s commercial activity

exception did not apply retroactively to claims against Japan

involving wartime events that occurred before 1952. Pet.

App. 18a. This Court vacated that decision on the retroactiv-

ity of the FSIA, and remanded the case to the D.C. Circuit for

further consideration in light of Republic of Austria v.

Altmann, 541 U.S. 677 (2004). See Pet. App. 17a.

While this Court in Altmann held that the FSIA applies

retroactively to conduct before 1952, it also made clear that

“nothing in our holding prevents the State Department from

filing statements of interest cuggesting that courts decline to

exercise jurisdiction in particular cases,” noting that such an

opinion by the State Department “might well be entitled to

deference as the considered judgment of the Executive on a

particular question of foreign policy.” 541 U.S. at 702

(citations and footnote omitted). The concurring opinion of

Justices Breyer and Souter further emphasized that a state-

ment of interest filed by the United States could “refer, not

on'y to sovereign immunity, but also to other grounds for dis-

missal, such as * * * the nonjusticiable nature * * * of'the

matters at issue.” Jd at 714 (Breyer, J., concurring). That

opinion referenced the District Court’s decision in this very

case as one in which the claims asserted arguably “raise poli-

tical questions that were settled by international agreements.”

Id. (citing Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52,

58, 64-67 (D.D.C. 2001)) (additional citations omitted).

7

In both the District Court and on appeal, the United States

government, through the Departments of State and Justice,

took the position that Japan was entitled to sovereign immun-

ity and that petitioners’ claims were non-justiciable because

the Treaty of Peace embodies the foreign policy determina-

tion of the United States that all claims against Japan arising

out of its prosecution of World War II are to be resolved

through inter-governmental negotiations not private law-

suits.4 Moreover, the Executive also informed the courts that

the relief sought by petitioners “would have serious repercus-

sions for our foreign policy toward Japan and other nations”

and “also could have serious implications for stability in the

region.” U.S. Dist. Ct. Statement of Interest at 1, 35. For

example, the United States noted that North Koreans are

among the putative class of victims in this case and that per-

mitting North Koreans to sue Japan in the United States for

wartime conduct “could pose a significant risk of seriously

disrupting international relations in East Asia at a time when

such relations are already extremely sensitive.” U.S. Supp.

Ct. App. Br. 8. Specifically, the United States explained that

“(t]he availability of a U.S. forum to litigate wartime claims

could reasonably be expected to impair discussions between

Japan and North Korea :egarding normalization of relations,

talks that have grown to encompass North Korea’s nuclear

weapons program.” /d. at 9.

4 See, e.g., U.S. Supp. Ct. App. Br. 2 (“the Executive, with the

advice and consent of the Senate, has made a foreign policy

determination that all World War IJ-related claims against Japan

should be resolved exclusively through intergovernmental

agreements. That determination is reflected i» ‘xe 1951 Treaty of

Peace * * *.”) (filed Nov. 23, 2004); U.S. Dist. Ct. Statement of

Interest 3 (“In order to decide the claims here, the Court would

have to question the policy judgment and wisdom of the President,

Congress and our Allies in entering the 1951 Treaty with Japan”)

(filed Apr. 27, 2001).

On remand, the D.C. Circuit (per Chief Judge Ginsburg

and Judges Sentelle and Tatel) again unanimously affirmed

the dismissal of the complaint, agreeing with the District

Court that the complaint presents nonjusticiable political

questions. Pet. App. 15a. In reaching this conclusion, the

Court of Appeals considered “‘the particular question posed,’

* * * namely, whether the series of treaties Japan concluded

in order to secure the peace after World War II foreclosed the

[petitioners’] claims.” Pet. App. 8a (quoting Baker, 368 U.S.

at 211). The court noted that the Treaty of Peace expressly

waives, in Article 14, “all 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.” /d.

(internal quotations and citation omitted).

The D.C. Circuit went on to hold that the political question

doctrine barred the claims of the petitioners from China, Tai-

wan, and South Korea, which were not formal parties to the

Treaty but nevertheless encompassed within its reach. The

Court of Appeais found it “pellucidly clear the Allied Powers

intended that ail war-related claims against Japan be resolved

through government-to-government negotiations rather than

through private tort suits.” Pet. App. 9a-10a (emphasis

added). That Article 26 of the Treaty of Peace obligated

Japan to enter into bilateral treaties with non-Allied states on

the same or similar terms as the Treaty, “indicates the Allied

Powers expected Japan to resolve other states’ claims, like

their own, through government-to-government agreement.”

Id. at 10a. Noting petitioners’ own concession that it seems

“anomalous” to bar war claims of U.S. nationals but never-

theless permit such claims of foreign nationals, the court

remarked that “‘anomalous’ is an understatement.” Jd. at 9a.

The D.C. Circuit declined petitioners’ invitation to decide

whether bilateral treaties and other agreements entered into

between Japan and China, Taiwan, and South Korea, respect-

ively, preserved their individual claims. /d. at 12a-13a. The

9

court noted that “the question whether the war-related claims

of foreign nationals were extinguished when the government

of their countries entered into peace treaties with Japan is one

that concerns the United States only with respect to her

foreign relations” and that the foreign relations power is

“demonstrably committed by our Constitution not to the

courts but to the political branches.” /d. at 13a (citing Ameri-

can Ins, Assn. v. Garamendi, 539 U.S. 396, 423 n.12 (2003)).

In looking at the particular question of the management of

relations with Japan for conduct during World War II, the

court explained that “it has been the foreign policy of the

United States to effect as complete and lasting a peace with

Japan as possible by closing the door on the litigation of war-

related claims, and instead effecting resolution of those

claims through political: means.” Pet. App. 13a (quotation

omitted). The Court of Appeals found that to interpret the

treaties between Japan on the one hand, and China, Taiwan,

or South Korea on the other hand would not only “undo”

settled foreign policy of state-to-state negotiation with Japan

but could also “disrupt Japan’s ‘delicate’ relations with China

and Korea.” /d. at 14a-15a (quotation omitted). In so

holding, the D.C. Circuit also accorded deference to “the

judgment of the Executive Branch of the United States

Government, which represents, in a thorough and persuasive

Statement of Interest, that judicial intrusion into the relations

between Japan and other foreign governments would impinge

upon the ability of the President to conduct the foreign

relations of the United States.” Jd. at 6a.

In reaching its decision in this case, the D.C. Circuit took

account of these and other foreign policy concerns as stated

by the Executive. That well-reasoned decision faithfully

applied the proper legal standards, conflicts with no other

decisions, and is plainly correct.

10

REASONS FOR DENYING THE WRIT

I, THE DECISION BELOW WAS A CORRECT

APPLICATION OF SETTLED LEGAL

STANDARDS AS TO WHICH THERE IS NO

CONFLICT AMONG THE CIRCUITS.

The decision below faithfully applies this Court’s

precedents on the political question doctrine and deference to

the Executive on foreign policy issues, and does not conflict

with decisions from the other courts of appeals. What peti-

tioners contend are conflicting decisions from the lower

courts merely reflect each court’s “analysis of the particular

question posed” by each case. Baker, 369 U.S. at 211. The

cited cases involved different factual and foreign policy

contexts, different treaties or no treaties at all, and different

positions by the Executive or no positions at all. In fact, all

of the courts to have considered similar issues—claims

relating to Japan’s wartime conduct during World War ll—

have reached entirely consistent conclusions that such claims

are not subject to adjudication in light of the Treaty of Peace

and the foreign policy it embodies.

A. There Is No Conflict Regarding Application Of

The Political Question Doctrine To Specific Facts.

In an attempt to create a conflict where none exists,

petitioners mischaracterize the D.C. Circuit’s opinion below,

asserting that the D.C. Circuit held that “claims related to

conduct during a war” are “constitutional!y committed to the

Executive Branch as a categorical matter.” Pet. 8 (emphasis

added). The D.C. Circuit made no such categorical holding.

Instead, it considered “‘the particular question’ posed in this

case * * * namely, whether the series of treaties Japan

concluded in order to secure the peace after World War II

foreclosed the [petitioners’] claims.” Pet. App. 8a (quoting

Baker, 369 U.S. at 211 (emphasis added). In reaching its

conclusion that petitioners’ claims are foreclosed by the

11

political question doctrine, the D.C. Circuit carefully

considered the Treaty of Peace, the foreign policy it

embodies, and the expressed views of the Executive

regarding the foreign policy implications of this case.5

The opinion below is entirely consistent with cases

considering application of the political question doctrine to

claims involving other countries, gr-wing out of other factual

circumstances. The D.C. Circuit’s decision in this case

simply says nothing about the justiciability of claims for

alleged misconduct in Germany or Italy during World War I],

which are governed by different agreements and foreign

policies, see Ungaro-Benages v. Dresdner Bank, AG, 379

F.3d 1227 (11th Cir. 2004); Alperin v. Vatican Bank, 410

F.3d 532 (9th Cir. 2005), or about the justiciability of claims

against the Palestine Liberation Organization for terrorist acts

committed in Israel, see Ungar v. Palestine Liberation Org.,

402 F.3d 274 (1st Cir.), or about conduct during the war in

Bosnia, see Kadic v. Karadizic, 70 F.3d 232 (2d Cir. 1995).

The conflict petitioners assert simply reflects the

consideration by the courts of differing circumstances.

In Ungaro-Benages, the Eleventh Circuit concluded that

claims against two German banks seeking return of property

allegedly illegally confiscated through the German state

program of “Aryanization” during World War II, were not

barred by the political question doctrine. 379 F.3d at 1230.

That conclusion, based on a careful review of the

“Foundation Agreement” entered into between the United

States and Germany in 2000 to govern claims arising from

5 The District Court had expressly declined to reach the issue

whether “war reparations are always justiciable,” instead

“conclud[ing] based on the specific circumstances of this case that

plaintiffs’ claims are nonjusticiable * * *.” Pet. App. 62a n.9

(emphasis added). The D.C. Circuit left that ruling intact, likewise

basing its conclusions on the specific circumstances of this case.

12

conduct in Germany during World War II, says nothing about

petitioners’ claims here against Japan. The Foundation

Agreement requires only that the United States government

file a Statement of Interest in any case seeking World War II

reparations concerning conduct in Germany that states that

“jt is in the foreign policy interests of the United States for

the case to be dismissed on any valid legal ground but [that

does} not suggest that the agreement itself provides an

independent legal basis for dismissal.” Jd. at 1232.

Considering just such a Statement of Interest, the Eleventh

Circuit held that the plaintiffs’ claims were not barred by the

political question doctrine, because the United States had

specifically agreed that such World War II reparations claims

against Germany could proceed in United States courts and

that the Foundation Agreement would not, by itself, provide

a basis for dismissal of such claims. Jd. at 1253-54.6

Likewise, the Ninth Circuit’s decision in Alperin is com-

pletely consistent with the D.C. Circuit’s decision below.

Alperin involved claims against defendants for their alleged

activities in support of the Ustasha regime that carried out

atrocities in Croatia during World War Il. 410 F.3d at 539-

540. In Alperin, however, there was no treaty embodying a

U.S. foreign policy that claims are to be resolved through

government-to-government negotiations, and there was no

statement of interest or amicus brief by the United States. /d.

6 The Eleventh Circuit went on to uphold the district court’s

dismissal of the complaint on the basis of international comity,

finding that the strength of the interests of both the United States

and Germany in using the forum established by the Foundation

Agreement to resolve such claims, and the adequacy of that

alternative forum, required the court to abstain from exercising

jurisdiction. 379 F.3d at 1238-39. In reaching this conclusion, the

Eleventh Circuit noted that “the executive’s statement of national

interest in issues affecting our foreign relations are entitled to def-

erence.” Jd. at 1239 n.14 (citing Altmann, 541 U.S. at 701-702).

13

at 538, 549-550. Moreover, the court distinguished between

two separate kinds of claims raised against the defendants

there. Performing a claim-specific analysis, the Ninth Circuit

concluded that the political question doctrine barred “War

Objectives Claims” raising various war-related torts tied to

the alleged assistance provided by the defendants to the Usta-

sha. /d. at 548. These alleged human rights violations were

akin to the claims asserted by petitioners here. /d. at 543.

Petitioners argue that Alperin conflicts with the decision

below by focusing on the “Property Claims” for return of

property, which the Ninth Circuit found did nut pose a non-

justiciable political question. /d@ at 548. But the Ninth

Circuit distinguished the War Operations Claims from the

Property Claims because the former involve the powers of

the Executive branch to wage war and conduct foreign affairs,

where there is only “a narrowly circumscribed role for the

judiciary.” Jd at 559 (internal quotation and citation

omitted). The court held that deciding the War Operations

Claims would require the judiciary tc make a foreign policy

determination about the wartime actions of a foreign govern-

ment with which the United States was at war-—something

for which the judiciary has no manageable standards and that

is committed to the political branches. See id. at 561 (“Con-

demning—for its wartime actions—a foreign government

with which the United States was at war would require us to

review[] an exercise of foreign policy judgment by the coord-

inate political branch to which authority to make that

judgment has been constitutional[ly] commit[ted].”) (cita-

tions and quotations omted). In contrast, the Ninth Circuit

found that “the Property Claims consist of garden-variety

legal and equitable claims for the recovery of property.” Jd.

at 548. Even aside from the fact that the two cases involve

very different circumstances, there is no conflict between the

decision below and Alperin because both courts found that

14

similar kinds of claims—for human rights abuses during

wartime—were barred by the political question doctrine.’

Ungar v. Palestine Liberation Organization, 402 F.3d 274

(1st Cir. 2005), and Kadic v. Karadzic, 70 F.3d 232 (2d Cir.

1995), are simply additional examples of courts making case-

specific determinations concerning the claims before them.

That the First and Second Circuits found that the political

question doctrine did not bar adjudication of, respectively,

claims against the PLO for terrorist actions in Israel, or

against the self-proclaimed president of the unrecognized

Bosnian-Serb entity for conduct during the war in Bosnia,

poses no conflict with the decision below. Those cases did

not involve the Treaty of Peace with Japan, nor did the Exec-

utive express the view that adjudication would interfere with

foreign policy. To the contrary, in Kadic the Executive ex-

pressly “disclaimed” that the political question doctrine

would bar the claims. 70 F.3d at 250. In neither of these

cases did the court hold broadly that claims for conduct “rela-

ted to highly politicized foreign wars” could never run afoul

of the political question doctrine. Pet. 11. To the contrary,

each court carefully considered the Baker v. Carr factors and

determined that the particular claims before them did not

7 Part of the Alperin case is the subject of pending certiorari

petitions. But those petitions do not challenge the Ninth Circuit’s

ruling as to the War Operations claims, only the ruling as to the

Property Claims. Because the Alperin respondents did not file a

cross-petition challenging the former ruling, any such challenge

has been waived. See S. Ct. R. 12.5, 13.4. Accordingly, any

ruling in Alperin, either affirming or reversing as to the Property

Claims, would have no conceivable relevance to this case, which

involves not only a unique treaty embodying a specific foreign

policy as informed by the views of the Executive, but also claims

akin to the War Operations Claims that are not subject to further

review in Alperin.

15

pose nonjusticiable political questions. See Ungar, 402 F.3d

at 279-280: “adic, 70 F.3d at 249-250.

In fact, .... state and federal courts that have actually

examined war claims relating to the Treaty of Peace have

reached the same conclusion as the D.C. Circuit: that adjudi-

cation of such claims is barred. The court in TJaiheiyo

Cement Corp. v. Superior Court, 12 Cal. Rptr. 3d 32, 35, 41-

42 (Ct. App. 2004)—expressly relying on the D.C. Circuit’s

determination that the Treaty of Peace “embodies the federal

government’s foreign policy that claims against Japan and its

nationals are :0 be resolved diplomatically”—held that the

Treaty barred adjudication of World War Il-related claims of

a Korean national against a Japanese company.’ Similarly,

in Deutsch v. Turner Corp., 324 F.3d 692, 716 (9th Cir.), the

Ninth Circuit held that state-law claims of Korean and

Chinese nationals against Japanese companies were barred

because the state statute creating the cause of action

“implicate({d] the exclusive power of the federal government

to make and resolve war, including the resolution of claims

arising out of such actions.”? See also Mitsubishi Materials,

8 Although Taiheiyo involved the related doctrine of federal

foreign affairs preemption, its conclusion is completely consistent

with the D.C. Circuit’s ruling that the settled foreign policy em-

bodied in the Treaty likewise bars adjudication of alleged uncodi-

fied international law claims that seek similar war reparations. See

Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004) (Congress

may “shut the door to the law of nations * * * at any time

(explicitly, or implicitly by treaties or statutes that occupy the

field) * * *.”) (emphasis added).

9 The court also noted that the legal question whether federal

law preempts a German plaintiff's World War ll-related claim was

justiciable because not “every dispute” over the application of a

treaty is non-justiciable. /d. at 713 n.11. In this case, the D.C. Cir-

cuit did not hold that “every dispute” that touches on a treaty raises

a political question; it merely held that this particular case is non-

justiciable in light of the specific policy embodied in the Treaty of

16

6 Cal. Rptr. 3d at 178 (Treaty of Peace, bars claims of

American POWs against Japanese companies).

The D.C. Circuit’s decision is not only consistent with

other cases involving the Treaty, it is plainly correct. The

Treaty embodies a clear foreign policy of the United States

under which all Japanese reparations issues would be

addressed through government-to-government negotiations,

in order to ensure the peace and stability of the entire Asian-

Pacific region. The D.C. Circuit properly declined to second-

guess those policy determinations, which implicate not only

the foreign policy of the United States but that of other

sovereign nations. The prospect of a U.S. court being

required to interpret bilateral agreements entered into

between Japan and its Asian neighbors—which implicate,

among other issues, sensitive foreign policy concerns

involving Japan and the two different governments that have

claimed to represent China over the years—amply

demonstrates the non-justiciable political nature of the case.

In any event, given that this case turns on a specific foreign

policy arising from a unique treaty—and that it has already

been more than 50 years since the conclusion of the 1951

Treaty of Peace—the precise issue resolved by the D.C. Cir-

cuit is unlikely to recur with any frequency, if at all. Thus,

whatever else can be said about the D.C. Circuit’s well-

reasoned decision, there is no need for this Court to expend

its limited resources to resolve this unique policy dispute.

Peace. The Ninth Circuit did not hold to the contrary. In fact, the

court’s holding that the Treaty preempted similar claims brought

against companies under state law, id. at 714-715, is entirely

consistent with D.C. Circuit's holding in this case. See supra n.8.

17

B. There Is No Conflict Regarding The Deference

Owed The Executive On Treaty Interpretation

And Foreign Policy.

There is likewise no conflict between the decision below

and decisions from other circuits concerning the deference

due to the views of the Executive Branch. Once again, the

outcomes in the cases petitioners cite are explained by the

differing circumstances of the cases and the particular

interest stated by the Executive in each case.

The very premise of petitioners’ argument is flawed. The

D.C. Circuit did not, as petitioners suggest, accord “complete

deference” to the views of the Executive in this case without

engaging in an independent analysis of justiciability. Pet. 12.

After noting the “thorough and persuasive Statement of

Interest” filed by the United States, Pet. App. 6a, the D.C.

Circuit conducted its own analysis, concluding that “it is

pellucidly clear the Allied Powers intended that all war-

related claims against Japan be resolved through

government-to-government negotiations rather than through

private tort actions.” /d. at 9a. The Court of Appeals thus

followed this Court’s guidance in Powell v. McCormack, 395

U.S. 486 (1969), and made its own assessment as to the

justiciability of the case. Cf Pet. 13 n.4. The court also cited

this Court’s decision in Altmann, which noted “that a

Statement of Interest concerning ‘the implications of

exercising jurisdiction over [a] particular [foreign

government] in connection with [its] alleged conduct * * *

might well be entitled to deference as the considered

judgment of the Executive on a particular question of foreign

policy.’” Pet. App. 7a-8a (quoting Altmann, 541 U.S. at 702).

Because the decision below is distinguishable from the

decisions cited by petitioners, any purported conflict is

illusory. The Statement of Interest at issue in Ungaro-

Benages was based on the Foundation Agreement with

Germany, not the Treaty of Peace with Japan, and

accordingly asserted a different interest than that asserted by

the United States below. The statement, as required by the

Foundation Agreement, merely informed the court “that it is

in the foreign policy interests of the United States for the

case to be dismissed on any valid legal ground but [did] not

suggest that the agreement itself provides an independent

legal basis for dismissal.” 379 F.3d at 1232. The views

expressed by the Executive on appeal were similarly non-

committal. See U.S. Amicus Br. filed in Ungaro-Benages,

2003 WL 23857369, at *15-16 (“[T]he United States does

not take a position with respect to the merits of the parties’

particular legal arguments”). And in Kadic v. Karadizic, the

United States “expressly disclaimed any concern that the

political question doctrine should be invoked to prevent the

litigation of these lawsuits.” 70 F.3d at 250 (emphasis

added). Even in the absence of such a statement, the Second

Circuit in Kadic noted that “an assertion of the political

question doctrine by the Executive Branch” would be

“entitled to respectful consideration.” Jd.

Likewise here, the D.C. Circuit properly applied a “policy

of case-specific deference to the political branches.” Pet.

App. 7a (quoting Sosa, 542 U.S. at 733 n.21). The foreign

policy concerns identified by the United States, moreover,

were not rendered in a vacuum but rather were tethered

directly to the Treaty of Peace. See supra at 7. Thus, the

D.C. Circuit merely applied the well-settled and venerable

principle that “‘[ajlthough not conclusive, the meaning

attributed to treaty provisions by the Government agencies

charged with their negotiation and enforcement is entitled to

great weight.”” Pet. App. 28a (quoting Sumitomo Shoji Am.,

Inc. v. Avagliano, 457 U.S. 176, 184-185 (1982)).

In any event, for the reasons set forth above and in the

opinions below, the D.C. Circuit’s decision was plainly

correct even without regard to the Executive’s views. Thus,

certiorari is unwarranted not only because there is no conflict

19

among the lower courts, but also because the outcome of the

case would be no different under whatever degree of

deference is accorded the Executive’s view.

C. There Is No Conflict Concerning Interpretation

Of Foreign Treaties.

Petitioners also contend that the D.C. Circuit’s decision not

to accept petitioners’ invitation to determine their rights

under bilateral agreements between Japan and China, Taiwan,

and South Korea, respectively, conflicts with decisions of

this Court and of other of the courts of appeals regarding

interpretation of foreign treaties. Pet. 14-17. Not so. None

of the cases cited by petitioners involved an asserted conflict

with U.S. foreign policy—much less a policy to leave

specific matters for resolution by government-to-government

negotiations—and none of them conflicts with the measured

and case-specific determination by the D.C. Circuit below.

Indeed, the lack of any conflict is not ail surprising, since

petitioners never once cited any of these decisions involving

foreign treaties during the nearly five years this case was

pending in the lower courts.

Once again, petitioners’ argument is based on a mischarac-

terization of the decision below. The D.C. Circuit did not

hold that it would never interpret a treaty between two for-

eign sovereigns. Instead, it held that interpreting these speci-

fic agreements would involve political questions in this par-

ticular case, where: (1) the policy established by the Treaty

of Peace is that all claims against Japan for its conduct during

World War II were to be addressed by government-to-gov-

ernment negotiations, not private lawsuits; and (2) the Execu-

tive had explained the foreign relations problems that would

ensue should the court venture to resolve conflicting inter-

pretations of the foreign agreements in this particular ca:

Petitioners cite Foster v. Neilson, 27 U.S. (2 Pet. 43

(1829), which arose in a wholly different context. Yet to the

20

extent the case has any relevance at all, it actually supports

the D.C. Circuit’s decision in this case. Foster involved a

boundary dispute that turned in part on an interpretation of a

foreign treaty. Yet Congress, through legislation, had

endorsed a particular interpretation of that treaty. /d. at 304.

Thus, far from simply construing the treaty itself, the Court

deferred to Congress’s interpretation, noting that “[a]

question like this respecting the boundaries of nations is * * *

more a political than a legal question, and in its discussion,

the courts of every country must respect the pronounced will

of the legislature.” /d. at 309 (emphasis supplied).

In Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 584

(1823), this Court mentioned the 1763 Treaty between Spain,

Great Britain and France only in passing as it determined

what effect to give ownership claims to land based on grants

from Indians concerning lands over which European

governments had claimed dominion. See id. at 571-572

(“The plaintiffs in this cause claim the land * * * under two

grants, purported to be made * * * by the chiefs of certain

Indian tribes * * * and the question is whether, this title can

be recognized in the Courts of the United States.”). Nothing

in that decision says anything about the application of the

political question doctrine to the circumstances of this case.!°

10 Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S.

221 (1986), is similarly off-point. That case merely held that not

every dispute over interpretation of a U.S. treaty raises a political

question because “under the Constitution, one of the Judiciary’s

characteristic roles is to interpret statutes, and we cannot shirk this

responsibility merely because our decision may have significant

politica! overtones.” /d. at 230. The D.C. Circuit did not shirk

from its responsibilities to interpret U.S. treaties. Far from it, the

court correctly construed the Treaty of Peace as embodying a clear

foreign policy “that all war-related claims against Japan be

resolved through government-to-government negotiations rather

than through private tort suits.” Pet. App. 9a-10a.

21

The court of appeals’ decisions cited by petitioners

likewise pose no conflict. In Prewitt Enterprises, Inc. v.

OPEC, 353 F.3d 916, 923-924 (11th Cir. 2003), no treaty

was involved. Instead, the Eleventh Circuit turned to Aus-

trian law, which incorporated an agreement between OPEC

(which is not a sovereign state) and Austria (where OPEC is

headquartered) concerning service of process against OPEC.

In Sea Hunt, Inc. v. The Uni.entified Shipwrecked Vessel or

Vessels, 221 F.3d 634 (4th Cir. 2000), the Fourth Circuit

looked to a 1763 Treaty between Great Britain and Spain to

determine whether a U.S. plaintiff could claim the wrecks of

two Spanish warships, but both of those nations had agreed

as to the interpretation of that treaty as applied to the

question raised in the case. The court found that agreement

between sovereigns to be “significant.” /d. at 646. The D.C.

Circuit below was faced with no such agreement by the

sovereigns as to the interpretation of the foreign treaties

involved here. Nor is Ungar, supra, to the contrary. The

court in Ungar specifically noted that because there was no

Statement of Interest filed by the United States, the court's

decision—and interpretation of agreements between Israel

and the Palestinian Authority “did not signify a lack of

respect for, or conflict with, the wishes of the political

branches.” 402 F.3d at 281. This case presents precisely that

kind of conflict.

Thus, petitioners’ newly-cited cases have no bearing on

this case. The foreign policy embodied in the Treaty of

Peace was to leave the resolution of war claims against Japan

to government-to-government negotiations, not private law-

suits. Whatever the content of Japan’s bilateral treaties and

agreements, the D.C. Circuit correctly refrained from

accepting petitioners’ invitation to arbitrate those sensitive

foreign policy issues. It was and is the clear foreign policy of

the United States to leave the resolution of such issues to the

countries involved, not the U.S. judiciary.

22

Il, THE DECISION BELOW IS FAITHFUL TO THIS

COURT'S PRECEDENTS CONCERNING THE

SEPARATION OF POWERS.

Perhaps recognizing that there is no conflict between the

D.C. Circuit’s opinion below and decisions from other of the

courts of appeals, petitioners argue that certiorari should be

granted due to the “fundamental separation of powers issues”

raised by this case. Pet. 18. Petitioners’ argument on this

point is yet again based on a broad overreading of the

decision below. The D.C. Circuit’s limited, case-specific

decision below is completely consistent with this Court’s

precedents. In fact, the separation of powers doctrine would

have been contravened by a contrary ruling, which would

have entangled the courts in sensitive foreign policy issues

that the political branches have directed be resolved through

diplomatic means.!!

As explained above, the D.C. Circuit addressed the specific

question before it, and did not hold that all “claims related to

conduct during a war are the exclusive province of the

Executive Branch,” or give “virtually blanket deference” to

the views of the Executive. Pet. 18. The D.C. Circuit did not

hold that it is never appropriate to interpret treaties—whether

U.S. or foreign-—in a case involving foreign policy. Rather,

it held that in this case, given the particular treaty involved

and the particular views of the Executive, the claims posed a

1! Petitioners complain, Pet. 18 n.6, that the D.C. Circuit

decided justiciability before the question of subject matter

jurisdiction. But as the D.C. Circuit explained, petitioners “point

to no authority suggesting [that] a dismissal under the political

question doctrine is an adjudication on the merits” and “(t}hat is

not how the Supreme Court sees the matter.” Pet. App. 4a. See

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (law

“does not dictate a sequencing of jurisdictional issues”);

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

215 (1974) (justiciability implicates Article III jurisdiction).

23

nonjusticiable political question. Nothing in the decision

below suggests that the D.C. Circuit, if presented with

different claims dealing with the conduct of a different

sovereign, governed by different treaty provisions, could not

reach a different result.

Rather than conflicting with the decision below, the cases

petitioners cite support a case-by-case determination of the

application of the political question doctrine, even to cases

involving the interpretation of treaties. Each of those cases—

which concern treaties entered into by the United States—

note, in the same passages cited by petitioners, the role of the

political branches when “political” issues arise in the

interpretation of treaties.'2 Thus, the full sentence from

Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)}—of which

petitioners cite but a tragment (Pet. 21)—reads: “While

courts interpret treaties for themselves, the meaning given

them by the departments of government particularly charged

with their negotiation and enforcement is given great

weight.” (emphasis added). That is precisely how the D.C.

Circuit considered the particular question posed in this case;

it interpreted the Treaty of Peace for itself, giving “great

weight” to the views of the political branches.

It is petitioners who seek a blanket pronouncement that the

political question doctrine does not apply to cases arising

under the FSIA or the ATS. Pet. 19. Such an argument,

12 See Jones v. Meehan, 175 US. 1, 32 (1899) (“the

construction of treaties is the peculiar province of the judiciary

* * * except in cases purely political”) (emphasis added); Sullivan

v. Kidd, 254 U.S. 433, 442 (1921) (“the construction placed upon

the treaty before us and consistently adhered to by the Executive

Department of the Government, charged with the supervision of

our foreign relations, should be given much weight”) (citations

omitted); Wilson v. Wall, 73 U.S. (6 Wall.) 83, 89 (“The

construction of {treaties} is the peculiar province of the judiciary,

when a case shall arise between individuals.”) (emphasis added).

24

however, is completely refuted by this Court’s decisions. In

Altmann, this Court explained that its holding concerning the

retroactive application of the FSIA did not negate the defer-

ence that was due to Statements of Interest filed by the Exec-

utive Branch concerning “particular question[s} of foreign

policy.” 541 U.S. at 702. And, as the D.C. Circuit noted

below, in Sosa, supra, this Court explained that “[a] policy of

‘case-specific deference to the political branches’ may be

appropriate in cases brought under the Alien Tort Statute.”

Pet. App. 7a (quoting Sosa, 542 U.S. at 733 n.21).'3

Moreover, and in any event, petitioners’ argument presup-

poses that this case was properly brought under the FSIA and

the ATS. In fact, it was not. The District Court squarely

held that Japan was entitled to FSIA immunity. See Pet. App.

47a-6la. And Japan has contended, in accord with this

Court’s clear precedents, that the ATS cannot apply to this

case against a foreign sovereign. See Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)

(ATS does not apply in action against foreign state because

“the FSIA provides the sole basis for obtaining jurisdiction

over a foreign state in the courts of this country”); Sosa, 542

U.S. at 724 (ATS “is a jurisdictional statute creating no new

causes of action”); see also Pet. App. 33a-34a (D.C. Circuit

holding that ATS does not apply to this case). Thus,

although the D.C. Circuit did not reach these issues on

remand, this Court would have to do so in order to opine on

petitioners’ incorrect assertion that the FSIA and ATS some-

13 The cases cited by petitioners (see Pet. 20) do not hold that

the political question doctrine cannot apply in cases brought under

the FSIA or the ATS. As noted above, in Ungar, Kadic, Alperin

and Ungaro-Benages, each court examined the particular case

before it in reaching a conclusion as to whether the claims asserted

were nonjusticiable political questions. In none of these cases did

the court hold, as petitioners argue, that the political question

doctrine cannot apply to cases brought under these statutes.

25

how trump the political question doctrine. Given the over-

whelming likelihood that the Court would find that neither

statute supports petitioners’ case, this case does not present a

proper vehicle for examining any hypothetical interplay

between those statutes and the political question doctrine.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

CRAIG A. HOOVER*

JONATHAN S. FRANKLIN

AUDREY J. ANDERSON

Hogan & Hartson L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5694

*Counsel of Record Counsel for Respondent

J Supreme wr. = S.

__No. 05-543 | JAN 1.0 2006

'

{_ OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

HWANG GEUM JOO, YUAN ZHULIN, LOLA TOMASA

SALINOG, LIU HUANG A-TAU, KIM BOON-SUN, KIM SANG

HEE, KIM SOON-DUK, YI YONG NYO, KIM BOK-DONG, LU

XIUZHEN, GUO YAYING, ZHU QIAOME]I, PRESCILA

BARTONICO, NARCISA CLAVERIA, MAXIMA REGALA

DE LA CRUZ, on behalf of themselves

and all others similarly situated,

Petitioners,

v

GOVERNMENT OF JAPAN,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

District or Co_umBia Circuit

REPLY BRIEF

Micwaet D. HAUSFELD

Counsel of Record

RICHARD A. KOFFMAN

AGNIESZKA M. FrysZMAN

Marka A. PETERSON

CoueN Mistew HAUSFELD

& Tort, P.L.L.C.

1100 New York Avenue, N.W.

Suite 500

Washington, DC 20005

(202) 408-4600

Attorneys for Petitioners

(Additional Counsel Listed on Inside Cover)

Barry A. FISHER

Davip Grosz

FLEISHMAN & FISHER

1888 Century Park East

Suite 1750

Los Angeles, CA 90067

Bitt LaNN LEE

Morris A. RATNER

Scott NEALEY

LierF CABRASER HEIMANN

& BERNSTEIN

275 Battery Street

30th Floor

San Francisco, CA 94111-3339

DuncaAN B. HOLLIs

Assistant Professor of Law

Tempce University SCHOOL oF Law

1719 N. Broad Street

Philadelphia, PA 19122

i

TABLE OF CONTENTS

Fr UNE ay EINE witlncscsencctisccetetaciccrinvinensszentnentcaptnetebutineneti l

FED cidsttvicetsentidrapdncnsdsivnenieneniinnisibeestibenematneseni l

[. A Circuit Split Exists on the Proper Standards for

Applying the Political Question Doctrine to

Claims for War-Related Conduct.............:cccccsesserereenes l

A. Japan’s Attempt to Explain Conflicting

Circuit Court Cases As Mere Factual

I EIT LEA LG Set OPE ]

B. Japan Fails to Distinguish Japan Whaling

and Cases in Which Circuit Courts Have

Construed Foreign Treataes........ccccesrrcerscsvesseseseseees 6

Il. Contrary to Japan’s Contention, Addressing the

Political Question Issue Prior to Subject Matter

Jurisdiction Was Not Appropriate, and Subject

Matter Jurisdiction Exists Over Petitioners’

i ec a i

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Page

Alperin v. Vatican Bank,

410 F.3d 532 (9th Cir. 2005),

petition for cert. filed sub nom.

Order of Friars Minor v. Alperin,

74 U.S.L.W. 3146 (U.S. Sept. 7, 2005) (No.

NERA alle SHE A aC PSE AAA as 3,4

Baker v. Carr,

EE Ee Be EF ei sipiciehttneesnenid einianividevabartiinnidens 6

Hwang Geum Joo y. Japan,

BE ee Cae le DE itestinassbectncoinbictnnanitieds 9

Japan Whaling Ass’n v. Am. Cetacean Soc'y,

OG Ae EC oe i sicssnccnssoniencopbdendighthanbighoonedcdidain 8

Johnsrud y. Carter,

a Fk Ae GPE Gale BFR icccctsnnsccctinccisinescncetonese 8-9

Kadic v. Karadzic,

riage yirdy fe SA | Se newer er 4,5

Powell v. McCormack,

Ny SA Oe MI Rinits ctesinsaiscaioitniniciegsaiccddgeniaegede 8

Prewitt Enters., Inc. v. O.P.E.C.,

pe ek Tie Le Re | Ean eenennee 6-7

Sea Hunt, Inc. v. Unidentified Shipwrecked

Vessel or Vessels,

221 F.3d 634 (4th Cir. 2000) ........ccccccesceseeeeeeees 7-8

Ungar v. P.L.O.,

PA es Tt Le . eee 7

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004) .000.. eee 2, 3,6

Ware v. Hylton,

ey Oar Oe ickcheiitickvenesbinesinhivianitantibnlaneaanhaiit I

Whiteman v. Dorotheum GmbH & Co. KG,

Pe bg i+ » | Da?

STATUTES

Trafficking Victims Protection Act, 22 U.S.C.A. §

Fe ee iccintindiinintidinWineiniitinciianiicthitidccisnume’ 4

Cal. Civ. Proc. Code § 3546.6 (ISD 9) ..cceccecsesssevevsesececevecconeved 6

INTRODUCTION

Japan dispels neither the existence of conflicts among

the Courts of Appeals nor the importance of the issues those

conflicts represent. Japan has merely pointed to highly

specific factual differences that both ignore and misconstrue

the relevant factual and legal differences between the cases.

Under Japan’s analysis, no circuit split could exist except

between cases with identical fact patterns. Indeed, by

claiming the differences in outcomes among the circuits

merely reflect the “particularized approach” required under

the political question doctrine, Japan would make any review

of the legal principles involved impossible. The relevant

bases for decision-making show, however, that a split exists

among the circuits on the application of the political question

doctrine to cases involving war-related claims.

ARGUMENT

I. A Circuit Split Exists on the Proper Standards for

Applying the Political Question Doctrine to Claims

for War-Related Conduct.

A. Japan’s Attempt to Explain Conflicting Circuit

Court Cases As Mere Factual Differences Fails.

The legal question raised by these cases is whether

claims related to war-time conduct are non-justiciable. The

D.C. Circuit concluded that “our Constitution does not vest

authority to resolve [the] dispute in the courts” whether the

series of treaties entered into by Japan after World War II

“preserved” or “extinguished” Petitioners’ claims against

Japan. App. 6a. The court made the sweeping legal

observation that war-time claims are the province of the

Executive Branch, and that therefore such claims are barred

under the political question doctrine even if they are not

expressly extinguished by post-war treaties. App. 1la-12a

(citing Ware v. Hylton, 3 U.S. 199, 230 (1796)). Thus

2

whether the 1951 Treaty between Japan and the U.S. and

other Allied Powers (“San Francisco Treaty”) and

agreements by Japan with other Asian countries actually

extinguished Petitioners’ claims did not matter to the court.

Indeed, the court pointedly refused to determine whether

Petitioners’ claims were settled or extinguished by the

applicable treaties — declining to interpret the treaties to

which Petitioners’ home countries were actually parties — and

instead deferred to Executive power as a categorical matter.

App. 14a-15a.

The differences between the categorical approach taken

by the D.C. Circuit and other Circuits’ approaches to similar

cases are not merely factual as Japan contends, but concern

the central question of whether such claims are generally

justiciable at all. First, Japan’s argument that there is no

circuit split because other circuits were not interpreting the

San Francisco Treaty is frivolous, because any case could be

distinguished as “not conflicting” if examined at this level of

specificity. Opposition to Petition for Certiorari (“Opp.

Cert.”) at 10. Here the content of the post-war treaty at issue

is even less relevant to whether there is a conflict, in light of

the D.C. Circuit’s focus on the bare existence of the San

Francisco treaty, rather than the terms of the treaties. Indeed,

Japan does not explain how the treaties at issue in the other

cases differ from the San Francisco Treaty in ways that

produce different outcomes. In fact, the other treaties

confirm a conflict with the D.C. Circuit. For example, in

Ungaro-Benages v. Dresdner Bank AG, the U.S. agreement

with Germany at issue, the Foundation Agreement,

specifically redressed plaintiff's claims. 379 F.3d 1227,

1233, 1234 (11th Cir. 2004). The Foundation Agreement thus

presented a stronger basis for holding that executive action

had displaced the courts compared to the San Francisco

Treaty, which does not redress Petitioners’ claims and to

which most Petitioners’ home countries are not even parties.

3

In fact, in a case decided on November 23, 2005,

Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57 (2d

Cir. 2005), the Second Circuit held that claims against

Austria for Nazi-era_ property deprivations were

nonjusticiable in light of the Foundation Agreement, the

precise argument rejected in Ungaro-Benages. Id. at 71.

The court noted that its decision conflicted with the Eleventh

Circuit case. /d. at 71 n.16. Whiteman thus adds to the

circuit split on the political question issues presented here.

Japan’s other attempts to distinguish Ungaro-Benages

on its facts also fail. Japan claims Ungaro-Benages is

distinguishable because the Executive Branch did not take

the position there that the treaty at issue required dismissal of

the case. Opp. Cert. at 12. However, this disregards the

more pertinent fact that the Executive in that case submitted a

Statement of Interest opposing adjudication and urging

dismissal, 379 F.3d at 1231-32, just as the Executive Branch

did here, yet the Eleventh Circuit nevertheless declined to

defer to the Statement of Interest on political question

grounds. /d. at 1236. The fact that the Eleventh Circuit

declined to apply the political question doctrine in spite of

the Foundation Agreement’s redressing the plaintiff's claims,

and the Executive Statement of Interest urging dismissal,

puts Ungaro-Benages in square conflict with the D.C.

Circuit’s decision.

Japan also attempts to explain the differences in the

results of the cases according to whether the Executive

Branch filed a Statement of Interest opposing adjudication.

E.g., Opp. Cert. at 12. But that attempt simply does not

explain differences among the circuits on whether war-

related claims are categorically committed to the Executive

Branch. Indeed in Alperin v. Vatican Bank, 410 F.3d 532

(9th Cir. 2005), petition for cert. filed sub nom. Order of

Friars Minor v. Alperin, 74 U.S.L.W. 3146 (U.S. Sept. 7,

2005) (No. 05-326), the Ninth Circuit rejected the same two

4

factors — (1) a U.S. policy favoring government-to-

government resolution of war-related claim; and (2) foreign

relations problems flowing from U.S. courts’ adjudicating

such claims. /d. at 568. The court also expressly rejected the

type of categorical reasoning employed by the D.C. Circuit.

See id. at 547 (“The dissent would have the political question

doctrine remove from our courts ‘All matters that fall by their

constitutional DNA into this sphere [of conduct involving

foreign relations]. This over-inclusive approach threatens to

sweep all cases touching foreign relations beyond the

purview of the courts” (citation omitted)).' The court did

" Japan also claims Alperin is consistent with the D.C. Circuit's

decision because the human rights claims dismissed in A/perin were

similar to Petitioners’ claims. Opp. Cert. at 13. However, the Ninth

Circuit indicated its holding “does not signify that slave labor claims

automatically raise issues that are committed to the political branches.”

410 F.3d at 562 n.20. Further, it dismissed the human rights claims based

on reasoning that does not apply here: The claims dismissed in Alperin

concerned alleged war crimes by the Vatican, which had never been

judged by the United States for wartime conduct. /d at 560 (noting

Allies chose not to prosecute the Vatican in the Nuremberg Trials).

Further, the court noted that the plaintiffs had alleged only indirect

involvement and indirect benefit by the Vatican. /d. at 560-61.

Petitioners do not ask the courts to enter such uncertain territory here:

Both Japan’s war time conduct and the issue of sex trafficking in women

and girls have been condemned by the United States. Trafficking Victims

Protection Act, 22 U.S.C.A. § 710! (2000). Further, as with the property

claims held justiciable in Alperin, judicially discoverable and manageable

standards exist to adjudicate these recognized wrongs. See Alperin, 410

F.3d at 553. See also id. at 555 (noting the manageability inquiry focuses

on “whether the courts are capable of granting relief in a reasoned

fashion”); Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1996)

(“universally recognized norms of international law provide judicially

discoverable and manageable standards” for claims for rape, torture, and

other torts committed during the Balkan conflict). In any case, the D.C.

Circuit did not hold that it lacked standards for adjudicating Petitioners’

claims, but rather that, as an overarching matter, the claims were

committed to the Executive Branch because of their foreign policy

implications.

5

suggest that it might have decided differently if a treaty

covered the Alperin plaintiffs’ claims, id. at 549-50, but the

Eleventh Circuit’s contrary decision that the Foundation

Agreement did mot bar adjudication under the political

question doctrine indicates, in fact, that the Ninth and

Eleventh Circuits differ on when a post-war treaty renders

claims non-justiciable, a question also presented by this case.

See also id. at 546-47 (noting wide range of outcomes in

courts that have considered the justiciability of World War

II-era claims); Whiteman, 431 F.3d at 71 n.16 (noting its

disagreement with Eleventh Circuit).

Japan’s attempt to explain the outcome of the cases as a

function of the position of the Executive Branch also fails

because Japan misconstrues the cases. Contrary to Japan’s

contention, the Eleventh Circuit and Second Circuit did not

hold that strong deference to the views of the Executive

Branch was appropriate with respect to the justiciability of

the war-related claims in those cases. Opp. Cert. at 12-13.

The Eleventh Circuit in Ungaro-Benages expressly declined

to defer to the Executive Statement of Interest urging

dismissal of the case in light of the Foundation Agreement.

379 F.3d at 1236 & n!2. Similarly in Kadic, the Second

Circuit expressly stated that it would mot necessarily have

deferred to the Executive Branch even if the Executive

Branch had opposed adjudication on political question

grounds. 70 F.3d at 250. Thus, the fact that the Executive

Branch did not submit a Statement of Interest in Kadic hardly

renders the case consistent with the D.C. Circuit’s reasoning.

Moreover, Japan’s contention that the Executive Branch’s

views control and explain the outcome of these cases

undercuts its contention that courts have not automatically

deferred to the Executive Branch on issues of

nonjusticiability in the field of foreign affairs. Indeed, if

deference to the Executive Branch explains the outcome of

the other circuit court cases, then the D.C. Circuit opinion —

which Japan contends does not reflect complete deference to