Tuesday, October 8, 2002
Lawyers Tell Ninth Circuit:
Courts Should Hear Slave Labor Claims Against Japanese Companies
By KENNETH OFGANG, Staff Writer/Appellate Courts
Treaties that officially ended hostilities between the United States and its allies on the one hand and Japan on the other should not be read as barring suits against private Japanese companies that used prisoners of war and citizens of occupied nations as forced laborers, attorneys seeking relief for thousands of those workers told a Ninth U.S. Circuit Court of Appeals panel yesterday.
Judges Stephen Reinhardt, Barry G. Silverman, and Stephen Trott gave no indication, after nearly four hours of argument, how they would rule. They peppered lawyers for the plaintiffs, the defendant companies, and the state and federal governments with questions on the scope of the treaties, the extent of federal power to conduct foreign relations, the applicable statute of limitations, and the existence of federal subject-matter jurisdiction.
The plaintiffs’ lawyers, including Kevin Roddy of the downtown Los Angeles firm Hagens Berman LLP, argue that the San Francisco Peace Treaty—and separate treaties negotiated by Japan with the Republic of China and the Republic of Korea—bar suits against the Japanese government, but not other entities.
The defendants—including Mitsubishi Corp., Mitsui, & Co., Nippon Steel Corp., Nippon Sharyo Ltd., Japan Energy Corp., and Ishihara Sangyo Kaisha Ltd.—and the U.S. government argue otherwise. Their position was upheld by U.S. District Judge Vaughn Walker of the Northern District of California, who was assigned the cases by the Judicial Panel on Multidistrict Litigation.
The court yesterday also heard a related argument by counsel for Josef Tibor Deutsch. Deutsch is suing two U.S. subsidiaries of the German construction company Hochtief AG as a result of his being forced to work for Hochtief after being taken to Trzebinia, a sub-camp of the Nazi concentration camp at Auschwitz in Poland.
U.S. District Judge Stephen V. Wilson of the Central District of California dismissed Deutsch’s suit, holding that it presented a political question that must be resolved by Congress rather than the courts. Los Angeles attorney Nate Kraut urged the judges to overturn that ruling, saying the courts have jurisdiction under both state law and the federal Torture Victims Protection Act of 1991.
Basis for Actions
All of the plaintiffs base their actions, at least in part, on Civil Code Sec. 354.6, which provides:
“Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover 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.”
The statute also waives applicable statutes of limitations that might otherwise bar the litigation. But Walker found the 1999 legislation unconstitutional, as an interference with the exclusive federal power over foreign affairs.
Steven M. Schneebaum, a Washington, D.C. lawyer whose suit on behalf of 5,000 surviving prisoners of war was originally filed in state court, said the case was improperly removed and should never have been heard by Walker. No federal questions are at issue, he said.
But a Department of Justice lawyer, Douglas Halward-Driemeier, argued that California cannot declare itself “open for business” with respect to war claims that the federal government has sought to preclude.
He cited Article 14(b) of the San Francisco treaty, which holds that except as specifically provided in the treaty, the allies “waive all reparations claims of…their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war.”
But the plaintiffs’ lawyers said they are seeking ordinary tort damages, not war reparations, and that the use of forced labor by profit-driven corporations was not part of “the prosecution of the war.”
That drew a skeptical response from Silverman, who questioned how the prisoners can claim they are not seeking war reparations when they could not possibly “have been…captured and enslaved without the complicity of the Japanese government.”
Schneebaum, however, said the term was “limited to the actions of the government and its agencies and instrumentalities.”
Roddy complained that Walker should not have dismissed the case on a “cursory” review and should have allowed discovery. He described a visit to the National Archives at which he learned that the government possesses 25 million documents related to forced labor by prisoners of war, 60 percent of which remain classified.
Trott retorted that the volume of the proposed discovery supports the notion that the issues should be left to the political branches of government, and questioned Roddy as to how long the discovery would take.
“Like any litigation process, it’s going to take a long time,” he told the panel.
Trott made clear his dissatisfaction with the answer, casting doubt on the ability of the government to respond to such a massive undertaking.
He commented that when he was assistant attorney general of the United States during the Reagan administration, “we couldn’t even process nickel-and-dime [Freedom of Information Act] requests in less than three years.”
Copyright 2002, Metropolitan News Company