Hwang Geum Joo v. Japan

• Decision Date: 27 June 2003
• Docket Number: No. 01-7169.,01-7169.
• Parties: HWANG GEUM JOO, et al., Appellants, v. JAPAN, Minister Yohei Kono, Minister of Foreign Affairs, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

332 F.3d 679

HWANG GEUM JOO, et al., Appellants, v. JAPAN, Minister Yohei Kono, Minister of Foreign Affairs, Appellee.

No. 01-7169.

United States Court of Appeals, District of Columbia Circuit.

Argued December 10, 2002.

Decided June 27, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cv02233).

Michael D. Hausfeld argued the cause for appellants. With him on the briefs were Agnieszka M. Fryszman, Elizabeth H. Cronise, Barry A. Fisher, David Grosz, and Bill Lann Lee.

Jenny S. Martinez argued the cause for amici curiae Kelly Askin, et al., in support of appellants. With her on the brief were Michael Tigar, David A. Handzo, and Richard Heideman.

Craig A. Hoover argued the cause for appellee. With him on the brief was Jonathan S. Franklin.

Douglas Hallward-Driemeier, Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States of America, in support of appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern, Attorney, U.S. Department of Justice.

Before: GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by GINSBURG, Chief Judge.

GINSBURG, Chief Judge:

The appellants are 15 women from China, Taiwan, South Korea, and the Phillippines; they brought this suit against Japan, seeking money damages for having been subjected to sexual slavery and torture before and during World War II. The district court held Japan immune from suit pursuant to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602-1611, because it had not waived its immunity and the conduct alleged did not come within the commercial activity exception to the FSIA. The district court also held the suit was barred under the political question doctrine.

We affirm the judgment of the district court. Under the FSIA Japan is entitled to immunity from suit concerning the pre-1952 acts alleged in this case. We reject the appellants' argument that violation of a jus cogens norm constitutes a waiver of sovereign immunity.

I. Background

The appellants allege that between 1931 and 1945 the Government of Japan abducted, coerced, or deceived them and a large number of other girls and women from occupied territories to serve as "comfort women," a euphemism for sex slaves, at so-called "comfort stations" near the front lines of the war, where the women were routinely raped, tortured, beaten, mutilated, and in some cases murdered. The appellants assert that these comfort stations were operated by the Japanese Army, which charged soldiers a fee for access to the women.

Only in 1992 did the Government of Japan acknowledge having had any involvement with the comfort stations, which it had previously attributed to entrepreneurs who employed "voluntary prostitutes." In 2000 the appellants filed a complaint in the district court invoking the Alien Tort Statute, 28 U.S.C. § 1350, and alleging that Japan had violated both positive and customary international law. Japan filed a motion to dismiss the complaint on the ground of sovereign immunity, which motion the district court granted.

The district court determined that its jurisdiction over Japan, if any, must rest solely upon the FSIA. Hwang Geum Joo v. Japan, 172 F.Supp.2d 52, 56 (D.D.C. 2001). Because that statute was not enacted until 1976, the court first considered whether the FSIA applies retroactively to the actions alleged in this case. Id. at 57-58. The district court did not reach a conclusion on that issue, however, instead holding that, even if the FSIA does govern the plaintiffs' claims, none of the exceptions to sovereign immunity provided in the FSIA applies. Id. at 58. The district court rejected the appellants' arguments that Japan had waived its immunity to suit in the United States, either explicitly by agreeing to the Potsdam Declaration — an argument abandoned on appeal — or implicitly by its commission of jus cogens violations, and that Japan's activities came within the commercial activity exception to the FSIA, 28 U.S.C. § 1605(a)(2). Id. at 64. The district court held in the alternative that the case must be dismissed because it presents a nonjusticiable political question. Id. at 67.

II. Analysis

The appellants raise two potential sources of district court jurisdiction over their suit against Japan. First, they argue the commercial activity exception to the FSIA applies retroactively, and Japan's operation of "comfort stations" was a commercial activity. Next, they contend Japan implicitly waived its sovereign immunity by violating jus cogens norms. Then, apparently assuming the courts have jurisdiction over Japan, they claim the Alien Tort Statute creates a cause of action for a violation of customary international law. Finally, the appellants argue the political question doctrine is inapplicable to this case.

We hold that the commercial activity exception does not apply retroactively to events prior to May 19, 1952; we therefore do not consider whether the "comfort stations" were a "commercial activity" within the meaning of the FSIA. In any event, the 1951 Treaty of Peace between Japan and the Allied Powers created a settled expectation on the part of Japan that it would not be sued in the courts of the United States for actions it took during the prosecution of World War II, and the Congress has done nothing that leads us to believe it intended to upset that expectation. As to whether a violation of jus cogens norms constitutes an implied waiver of sovereign immunity pursuant to 28 U.S.C. § 1605(a)(1), our holding in Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C.Cir.1994), is dispositive and remains good law; it therefore binds this panel of the court, as the appellants recognize.

We need not decide whether the Alien Tort Statute creates a cause of action because it clearly does not confer jurisdiction over a foreign sovereign. Nor, because the district court did not have jurisdiction of this case pursuant to the FSIA, need we consider whether the political question doctrine would also bar its adjudication.

A. Retroactive Application of the Commercial Activity Exception to the FSIA

The FSIA, enacted in 1976, "provides the sole basis for obtaining jurisdiction over a foreign state in federal court." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 690, 102 L.Ed.2d 818 (1989); see Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488, 103 S.Ct. 1962, 1968-69, 76 L.Ed.2d 81 (1983) (FSIA contains "comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities"). We have previously laid out at some length the history of the United States' approach to foreign sovereign immunity in general, culminating in the passage of the FSIA, see Princz, 26 F.3d at 1169-71; here we concentrate specifically upon the commercial activity exception.

Prior to 1952, the courts of the United States generally followed the doctrine of "absolute immunity," see Verlinden, 461 U.S. at 486, 103 S.Ct. at 1967-68; Letter from Jack B. Tate, Acting Legal Advisor, Department of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. of State Bull. 984-85 (1952), and in Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711, 96 S.Ct. 1854, 1869, 48 L.Ed.2d 301 (1976) (Appendix 2 to opinion of White, J.); that is, the courts almost always held a foreign sovereign immune from suit. See Verlinden, 461 U.S. at 486, 103 S.Ct. at 1967-68 ("foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution. Accordingly, this Court consistently has deferred to the decisions of the political branches — in particular, those of the Executive Branch — on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities"). In 1952 the United States adopted the doctrine of "restrictive immunity," as set out in the Tate Letter and later codified in the FSIA. See Verlinden, 461 U.S. at 486-88, 103 S.Ct. at 1967-69. Under that doctrine "immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial acts." Verlinden, 461 U.S. at 487, 103 S.Ct. at 1968. This distinction served as the basis for the commercial activity exception in the FSIA, which allows a suit against a foreign sovereign to proceed if:

the action is based [1] upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

28 U.S.C. § 1605(a)(2). In this case the appellants invoke the first and third conditions, claiming in connection with the former that Japan operated some comfort stations in two occupied territories of the United States, namely, Guam and the Phillippines.

With this background in mind we consider whether 28 U.S.C. § 1605(a)(2) can be applied to events that occurred prior to 1952. This is a two-step inquiry. First, we must consider whether the commercial activity exception to the FSIA has retroactive effect.

A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. As we have repeatedly counseled, the judgment whether a particular statute acts retroactively should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.

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