413 F.3d 45 (D.C. Cir. 2005), 01-7169, Joo v. Japan

Docket Nº:01-7169.
Citation:413 F.3d 45
Party Name:Hwang Geum JOO, et al., Appellants v. JAPAN, Minister Yohei Kono, Minister of Foreign Affairs, Appellee.
Case Date:June 28, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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413 F.3d 45 (D.C. Cir. 2005)

Hwang Geum JOO, et al., Appellants


JAPAN, Minister Yohei Kono, Minister of Foreign Affairs, Appellee.

No. 01-7169.

United States Court of Appeals, District of Columbia Circuit

June 28, 2005

Argued March 22, 2005.

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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 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.

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.

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The district court dismissed the appellants' complaint, Hwang Geum Joo v. Japan, 172 F.Supp.2d 52, 63 (D.D.C.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, 124 S.Ct. 2240, 159 L.Ed.2d 1 (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, --- U.S. ----, 124 S.Ct. 2835, 159 L.Ed.2d 265 (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 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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 118 S.Ct. 1003. The court must therefore "address questions pertaining to its or a lower court's jurisdiction before proceeding to the merits." Tenet v. Doe, --- U.S. ----, ---- n. 4, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82 (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

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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 the federal judiciary from being invoked by the complaining party.

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

Moreover, Steel Co. "does not dictate a sequencing of jurisdictional issues." Ruhrgas AG v. Marathon Oil Co., 526 U.S....

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