United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2005 Decided June 28, 2005
No. 01-7169
HWANG GEUM JOO, ET AL.,
APPELLANTS
v.
JAPAN, MINISTER YOHEI KONO, MINISTER OF FOREIGN
AFFAIRS,
APPELLEE
On Remand from the U.S. Supreme Court
Agnieszka M. Fryszman argued the cause for appellants.
With her on the briefs were Michael D. Hausfeld, Barry A.
Fisher, David Grosz, and Bill Lann Lee.
Jenny S. Martinez argued the cause for amici curiae
Askin, et al. in support of appellants. With her on the brief were
David A. Handzo and Richard Heideman.
Craig A. Hoover argued the cause for appellee. With
him on the brief were Jonathan S. Franklin and Lorane F.
Hebert.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States of America in
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support of appellee. With her on the brief were Peter D.
Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.
Attorney, and Mark B. Stern, Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE and
TATEL, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: We again review the district
court’s dismissal of the appellants’ complaint alleging Japanese
soldiers “routinely raped, tortured ... [and] mutilated” them,
along with thousands of other women, in occupied countries
before and during World War II. Hwang Geum Joo v. Japan,
332 F.3d 679, 681 (D.C. Cir. 2003). The case returns to us now
on remand from the Supreme Court. Having had the benefit of
further briefing and argument, we affirm the judgment of the
district court on the ground that the case presents a
nonjusticiable political question, namely, whether the
governments of the appellants’ countries foreclosed the
appellants’ claims in the peace treaties they signed with Japan.
I. Background
The facts of this case are set forth in our previous opinion,
id. at 680-81. In brief, the appellants are 15 women from China,
Taiwan, South Korea, and the Philippines; in 2000 they sued
Japan in the district court under the Alien Tort Statute, 28
U.S.C. § 1350, “seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and during
World War II,” in violation of “both positive and customary
international law.” 332 F.3d at 680, 681.
The district court dismissed the appellants’ complaint,
Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 63 (D.D.C.
3
2001), concluding first that Japan’s alleged activities did not
“arise in connection with a commercial activity” and therefore
did not fall within the commercial activity exception in the
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §
1605(a)(2). Accordingly, the district court did not consider the
second requirement for jurisdiction under that exception -- that
“Japan’s alleged conduct caused a ‘direct effect’ in the United
States.” 172 F. Supp. 2d at 64 n.8. The district court went on to
hold in the alternative that the complaint presents a
nonjusticiable political question, noting that “the series of
treaties signed after the war was clearly aimed at resolving all
war claims against Japan.” Id. at 67.
We affirmed on the ground that Japan would have been
afforded absolute immunity from suit in the United States at the
time of the alleged activities, 332 F.3d at 685, and that the
Congress did not manifest a clear intent for the commercial
activity exception to apply retroactively to events prior to May
19, 1952, when the State Department first espoused the
restrictive theory of immunity later codified in the FSIA, id. at
686. The Supreme Court, however, held in Republic of Austria
v. Altmann, 541 U.S. 677, 699 (2004), that the FSIA applies to
all cases filed thereunder “regardless of when the underlying
conduct occurred.” Accordingly, the Court granted the
appellants’ petition for a writ of certiorari, vacated our
judgment, and remanded the case to this court for further
consideration in light of Altmann. Hwang Geum Joo v. Japan,
124 S. Ct. 2835 (2004).
II. Analysis
The appellants again urge this court to reverse the district
court’s holding that their claims are not “based upon ... act[s] ...
in connection with a commercial activity,” 28 U.S.C. §
1605(a)(2), and to remand the case to the district court for it to
4
decide in the first instance whether Japan’s alleged actions
“cause[d] a direct effect in the United States.” Id. Japan, and
the United States as amicus curiae, again argue that Japan enjoys
sovereign immunity because its alleged activities were not
commercial and, in any event, that the appellants’ complaint
presents a nonjusticiable political question.
As explained below, we agree with the latter argument and
therefore do not address the issue of sovereign immunity. The
appellants, however, citing Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1998), contend that “[b]efore
reaching [the] political question [doctrine], this [c]ourt must
establish jurisdiction” under the FSIA. We turn first to that
issue.
A. The Order of Proceeding
As the Supreme Court stated in Steel Co., “For a court to
pronounce upon the meaning ... of a state or federal law when it
has no jurisdiction to do so is, by very definition, for a court to
act ultra vires.” 523 U.S. at 101-02. The court must therefore
“address questions pertaining to its or a lower court’s
jurisdiction before proceeding to the merits.” Tenet v. Doe, 125
S. Ct. 1230, 1235 n.4 (2005).
The appellants apparently assume, but point to no authority
suggesting, a dismissal under the political question doctrine is
an adjudication on the merits. That is not how the Supreme
Court sees the matter:
[T]he concept of justiciability, which expresses the
jurisdictional limitations imposed upon federal courts by
the ‘case or controversy’ requirement of Art. III, embodies
... the ... political question doctrine[] .... [T]he presence of
a political question [thus] suffices to prevent the power of
5
the federal judiciary from being invoked by the
complaining party.
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
215 (1974).
Moreover, Steel Co. “does not dictate a sequencing of
jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 584 (1999) (within court’s discretion to address
personal jurisdiction before subject-matter jurisdiction); see also
Toca Producers v. FERC, No. 04-1135, Slip. Op. at 5 (D.C. Cir.
2005) (addressing ripeness before standing). Rather, as this
court held In re Papandreou, “a court that dismisses on other
non-merits grounds such as forum non conveniens and personal
jurisdiction, before finding subject-matter jurisdiction, makes no
assumption of law-declaring power that violates the separation
of powers principles underlying ... Steel Company.” 139 F.3d
247, 255 (1998). As the Supreme Court stated in Tenet,
“application of the Totten rule of dismissal, [92 U.S. 105
(1876),] like the abstention doctrine of Younger v. Harris, 401
U.S. 37 (1971), or the prudential standing doctrine, represents
the sort of ‘threshold question’ we have recognized may be
resolved before addressing jurisdiction.” 125 S. Ct. at 1235 n.4.
Likewise, we need not resolve the question of the district court’s
subject-matter jurisdiction under 28 U.S.C. § 1330 -- that is,
whether Japan is entitled to sovereign immunity under the FSIA,
see Creighton Ltd. v. Gov’t of the State of Qatar, 181 F.3d 118,
121 (D.C. Cir. 1999) (the FSIA “is the sole basis for obtaining
jurisdiction over a foreign state in our courts”) -- before
considering whether the complaint presents a nonjusticiable
political question, see Ruhrgas, 526 U.S. at 585 (“It is hardly
novel for a federal court to choose among threshold grounds for
denying audience to a case on the merits”).
B. The Political Question Doctrine
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The War in the Pacific has been over for 60 years, and
Japan has long since signed a peace treaty with each of the
countries from which the appellants come. The appellants
maintain those treaties preserved, and Japan maintains they
extinguished, war claims made by citizens of those countries
against Japan. As explained below, our Constitution does not
vest the authority to resolve that dispute in the courts. Rather,
we defer 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.
Baker v. Carr, 369 U.S. 186 (1962), remains the starting
point for analysis under the political question doctrine. There
the Supreme Court explained that “[p]rominent on the surface of
any case held to involve a political question is found” at least
one of six factors, the first of which is “a textually demonstrable
constitutional commitment of the issue to a coordinate political
department ....” Id. at 217.* Of course, questions concerning
foreign relations “frequently ... involve the exercise of a
discretion demonstrably committed to the executive or
*
Other factors that indicate a political question, the Court in
Baker explained, are: “a lack of judicially discoverable and
manageable standards for resol[ution]; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.” Id.
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legislature”; the Court cautioned, however, that “it is error to
suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance.” Id. at 211. Courts
are therefore to focus their analysis upon “the particular question
posed, in terms of the history of its management by the political
branches.” Id.
The Supreme Court has recently given further direction
more closely related to the legal and factual circumstances of
this case: A policy of “case-specific deference to the political
branches” may be appropriate in cases brought under the Alien
Tort Statute. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2766
n.21 (2004). In Sosa, the Court took note of certain class actions
seeking damages for those injured by “the regime of apartheid
that formerly controlled South Africa”; in each case the United
States had filed a Statement of Interest counseling dismissal
because prosecution of the case would interfere with South
Africa’s policy of “deliberately avoid[ing] a ‘victors’ justice’
approach to the crimes of apartheid” in favor of “confession and
absolution ... reconciliation, reconstruction, reparation and
goodwill.” Id. “In such cases,” the Court explained, “there is a
strong argument that federal courts should give serious weight
to the Executive Branch’s view of the case’s impact on foreign
policy.” Id. Similarly, the Court in Altmann 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.” 541 U.S. at 702; see also
id. at 714 (Breyer, J., concurring) (citing district court’s opinion
in this case).
With these principles in mind, we turn to “the particular
question posed” in this case, Baker, 369 U.S. at 211, namely,
whether the series of treaties Japan concluded in order to secure
8
the peace after World War II foreclosed the appellants’ claims.
As we explained in our previous opinion, Article 14 of the 1951
Treaty of Peace between Japan and the Allied Powers, 3 U.S.T.
3169, “expressly waives ... ‘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.’” 332 F.3d
at 685.
The appellants from China, Taiwan, and South Korea argue
that because their governments were not parties to the 1951
Treaty, the waiver of claims provision in Article 14 did not
extinguish their claims. Neither, they argue, did the subsequent
agreements between Japan and the governments of their
countries. Although the appellants acknowledge that “it may
seem anomalous that aliens may sue where similar claims of
U.S. nationals are waived,” they argue “that is precisely the
result contemplated by ... the [Alien Tort Statute], 28 U.S.C. §
1350.”*
“Anomalous” is an understatement. See Statement of
Interest of the United States at 28 (“it manifestly was not the
*
Despite the district court’s having dismissed their complaint
on the ground that “the series of treaties signed after the war was
clearly aimed at resolving all war claims against Japan” and that a
United States “court is not the appropriate forum in which plaintiffs
may seek to reopen those discussions,” 172 F. Supp. 2d at 67, the
appellants argue for the first time in their post-remand Supplemental
Reply Brief that because they allege injuries dating back to 1931, their
claims did not arise solely from “the prosecution of the war,” which
in Article 8(a) of the 1951 Treaty is defined as having begun on
September 1, 1939, the day Germany invaded Poland. This argument,
raised for the first time in the appellants’ fourth and final brief on
appeal, comes far too late for the court to consider, cf. Sierra Club v.
EPA, 292 F.3d 895, 900 (D.C. Cir. 2002) (“our caselaw makes clear
that an argument first made in the reply comes too late”).
9
intent of the President and Congress to preclude Americans from
bringing their war-related claims against Japan ... while allowing
federal or state courts to serve as a venue for the litigation of
similar claims by non-U.S. nationals”). Even if we assume,
however, as the appellants contend, that the 1951 Treaty does
not of its own force deprive the courts of the United States of
jurisdiction over their claims, 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 suits. Indeed, Article 26 of the Treaty
obligated Japan to enter “bilateral” peace treaties with non-
Allied states “on the same or substantially the same terms as are
provided for in the present treaty,” which indicates the Allied
Powers expected Japan to resolve other states’ claims, like their
own, through government-to-government agreement. To the
extent the subsequent treaties between Japan and the
governments of the appellants’ countries resolved the claims of
their respective nationals, the 1951 Treaty at a minimum obliges
the courts of the United States not to disregard those bilateral
resolutions.
First, the Republic of the Philippines, as an Allied Power,
was a signatory to the 1951 Treaty itself and thus at least
purported to waive the claims of its nationals. 136 U.N.T.S. at
137, ratified 260 U.N.T.S. 450. Then in 1952 Japan reached an
agreement with the Republic of China (Taiwan), 138 U.N.T.S.
37, which did not expressly mention the settlement of individual
claims but did state in Article XI that “[u]nless otherwise
provided for in the present Treaty ... any problem arising
between [the parties] as a result of the existence of a state of war
shall be settled in accordance with the relevant provisions of the
[1951] Treaty.” In 1965 Japan and the Republic of Korea
(South Korea) entered into an agreement providing that “the
problem concerning property, rights, and interests of the two
Contracting Parties and their nationals ... and concerning claims
10
between the Contracting Parties and their nationals ... is settled
completely and finally.” 583 U.N.T.S. 258, 260 (Art. II, § 1).
Finally, in 1972 Japan and the People’s Republic of China
issued a Joint Communiqué in which China “renounce[d] its
demand for war reparation from Japan,” and in 1978 Japan and
China affirmed in a formal treaty of peace that “the principles
set out in [the Joint Communiqué] should be strictly observed.”
1225 U.N.T.S. 269.
As evidenced by the 1951 Treaty itself, when negotiating
peace treaties,
governments have dealt with ... private claims as their own,
treating them as national assets, and as counters, ‘chips’, in
international bargaining. Settlement agreements have
lumped, or linked, claims deriving from private debts with
others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set
off against concessions in the other, or against larger
political considerations unrelated to debts.
Louis Henkin, Foreign Affairs and the Constitution 300 (2d
edition 1996); see Dames and Moore v. Regan, 453 U.S. 654,
688 (1981) (upholding President’s authority to settle claims of
citizens as “a necessary incident to the resolution of a major
foreign policy dispute between our country and another [at least]
where ... Congress acquiesced in the President’s action”); Am.
Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003)
(acknowledging “President’s authority to provide for settling
claims in winding up international hostilities”).
The governments of the appellants’ countries apparently
had the authority -- at least the appellants do not contest the
point -- to bargain away their private claims in negotiating a
peace with Japan and, as we noted previously, it appears “in fact
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[they] did.” 332 F.3d at 685. Indeed, Professor Henkin reports
that “except as an agreement might provide otherwise,
international claim settlements generally wipe out the
underlying private debt, terminating any recourse under
domestic law as well.” Above at 300. The Supreme Court first
expressed the same understanding with respect to the Treaty of
Paris ending the War of Independence, which expressly
provided for the preservation of private claims. In Ware v.
Hylton, 3 U.S. (3 Dall.) 199, 230 (1796), a case brought by a
British subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of
the war, and that after peace is concluded, neither the matter
in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All
violencies, injuries, or damages sustained by the
government, or people of either, during the war, are buried
in oblivion; and all those things are implied by the very
treaty of peace; and therefore not necessary to be expressed.
Hence it follows, that the restitution of, or compensation
for, British property confiscated, or extinguished, during the
war, by any of the United States, could only be provided for
by the treaty of peace; and if there had been no provision,
respecting these subjects, in the treaty, they could not be
agitated after the treaty, by the British government, much
less by her subjects in courts of justice. (Emphasis
supplied).
Contrary to that principle, the appellants insist the treaties
between Japan and Taiwan, South Korea, and China preserved
the claims of individuals by failing to mention them (a claim
that would be untenable with respect to the Philippines). Japan
does not agree, nor does the Department of State, which takes
the position that “[t]he plaintiffs’ governments ... chose to
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resolve those claims through international agreements with
Japan.” Statement of Interest at 31. In order to adjudicate the
plaintiffs’ claims, the court would have to resolve their dispute
with Japan over the meaning of the treaties between Japan and
Taiwan, South Korea, and China, which, as the State
Department notes in arguing this case is nonjusticiable, would
require the court to determine “the effects of those agreements
on the rights of their citizens with respect to events occurring
outside the United States.” Id.
The question whether the war-related claims of foreign
nationals were extinguished when the governments of their
countries entered into peace treaties with Japan is one that
concerns the United States only with respect to her foreign
relations, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches,
with “the President [having] the ‘lead role.’” Garamendi, 539
U.S. at 423 n.12. And with respect to that question, the history
of management by the political branches, Baker, 369 U.S. at
211, is clear and consistent: Since the conclusion of World War
II, 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 the resolution of those claims through political
means.” Statement of Interest at 29; see also S. Rep. No. 82-2,
82d Cong., 2d Sess. 12 (1952) (“Obviously insistence upon the
payment of reparations in any proportion commensurate with the
claims of the injured countries and their nationals would wreck
Japan’s economy, dissipate any credit that it may possess at
present, destroy the initiative of its people, and create misery
and chaos in which the seeds of discontent and communism
would flourish”); Aldrich v. Mitsui & Co. (USA), Case No. 87-
912-Civ-J-12, Slip Op. at 3 (M.D. Fla. Jan. 20, 1988) (following
State Department’s recommendation to dismiss private claim as
barred by 1951 Treaty); In re World War II Era Japanese
13
Forced Labor Litigation, 114 F. Supp. 2d 939, 946-48 (N. D.
Cal. 2000) (same).
It is of course true, as the appellants point out, that in
general “the courts have the authority to construe treaties and
executive agreements,” Japan Whaling Ass’n v. Am. Cetacean
Soc’y, 478 U.S. 221, 230 (1986); see also Ungaro-Benages v.
Dresdner Bank AG, 379 F.3d 1227, 1235-36 (11th Cir. 2004).
At the same time, the Executive’s interpretation of a treaty is
ordinarily entitled to “great weight,” Sumitomo Shoji Am., Inc.
v. Avagliano, 457 U.S. 176, 184-85 (1982).
Here, however, the United States is not a party to the
treaties the meaning of which is in dispute, and the Executive
does not urge us to adopt a particular interpretation of those
treaties. Rather, the Executive has persuasively demonstrated
that adjudication by a domestic court not only “would undo” a
settled foreign policy of state-to-state negotiation with Japan,
but also could disrupt Japan’s “delicate” relations with China
and Korea, thereby creating “serious implications for stability in
the region.” Statement of Interest at 34-35. Consider:
According to the appellants the Republic of Korea does not
agree with Japan’s understanding that the treaty between them
extinguished the appellants’ claims against Japan. See Reply
Brief of Appellants at 15 n.14 (quoting Korean Foreign Minister
as saying that “it is the government’s position that the [Treaty of
1965] does not have any effect on individual rights to bring
claims or lawsuits,” Decl. of Prof. Chang Rok Kim, Pls.’ Opp.
Mot. Dismiss. Ex. 2 at 12). Is it the province of a court in the
United States to decide whether Korea’s or Japan’s reading of
the treaty between them is correct, when the Executive has
determined that choosing between the interests of two foreign
states in order to adjudicate a private claim against one of them
would adversely affect the foreign relations of the United
States? Decidedly not. The Executive’s judgment that
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adjudication by a domestic court would be inimical to the
foreign policy interests of the United States is compelling and
renders this case nonjusticiable under the political question
doctrine.
III. Conclusion
We hold the appellants’ complaint presents a nonjusticiable
political question, namely, whether the governments of the
appellants’ countries resolved their claims in negotiating peace
treaties with Japan. In so doing we defer to “the considered
judgment of the Executive on [this] particular question of
foreign policy.” Altmann, 541 U.S. at 702; Cf. Alperin v.
Vatican Bank, 405 F.3d 727, 755 (9th Cir. 2005) (“Condemning
-- 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 coordinate political branch to
which authority to make that judgment has been constitutionally
committed”). For the court to disregard that judgment, to which
the Executive has consistently adhered, and which it
persuasively articulated in this case, would be imprudent to a
degree beyond our power.
Accordingly, as we said when this case was previously
before us, “much as we may feel for the plight of the appellants,
the courts of the United States simply are not authorized to hear
their case.” 332 F.3d at 687. For the foregoing reasons, the
judgment of the district court is
Affirmed.