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RABI ABDULLAHI V PFIZER, INC.

and would therefore be clearly covered by the restriction on experimentation on


non-consenting human beings; and
Court: United States Court of Appeals for the Second Circuit (3) The case was of mutual concern to both the US and Nigeria as such conduct
Citation: Docket Nos: 05-4863-cv (L), 05-6768-cv (CON) could foster distrust, reduce co-operation between nations and generate substantial
Date: 30 January 2009 anti-American feeling in the region.

Instrument(s) Cited: Dissenting Opinion:


Alien Tort Statute, 28 U.S.C. § 1350
Connecticut Unfair Trade Practices Act Circuit Judge Wesley dissented for the following reasons: (1) customary
Connecticut Products Liability Act international law only applies to state actors and not to private actors such as
International Court of Justice Statute, article 38 Pfizer; (2) the restriction should not be regarded as a customary norm simply
Nuremberg Code, First Principle because other States have prohibited this behaviour; (3) the international
World Medical Association's Declaration of Helsinki instruments listed above were put forward by private organisations who were not in
Council for International Organisations of Medical Services a position to create laws; and (4) some of the instruments came into effect after the
International Covenant on Civil and Political Rights, article 7 incident happened without reference to any retrospective effect.
Impact:
Case Summary: In July 2009, Pfizer petitioned the US Supreme Court to appeal this ruling. In
Background: November, the Supreme Court asked the US Solicitor General to file a brief, which
A group of Nigerian children and their guardians alleged that Pfizer experimented on he did in May 2010, denying Pfizer's petition. On 23 February 2011, the parties
200 children suffering from meningitis without their consent or knowledge. At the announced that they had reached a confidential settlement in the lawsuit.
time of the 1996 meningitis epidemic in northern Nigeria, Pfizer was attempting to Following various proceedings in Nigeria, Pfizer and the Kano state government
obtain Food and Drug Administration (FDA) approval for a new antibiotic came to an out-of-court settlement worth $75 million in August 2009. A new lawsuit
Trovafloxacin Mesylate (Trovan). The complainants further alleged that Pfizer was filed by the victims in November 2013 in the Federal High Court in Kano who
purposefully under-dosed the children treated with the well-established and FDA- complained that, by restricting the criteria for compensation, Pfizer had breached
approved drug Ceftriaxone in order to skew the trial results in favour of Trovan. 11 the terms of the 2009 agreement. In November 2014, Pfizer paid out full and final
children died as a result of the trial and many others were left blind, paralysed or compensation to the 14 victims who passed the DNA tests in accordance with the
brain-damaged. terms of the 2009 settlement.

The complainants filed a claim under the Alien Tort Statute (ATS) grounded in the
prohibitions of the Nuremberg Code, the World Medical Association's Declaration of
Helsinki, the guidelines of the Council for International Organisations of Medical
Services and the International Covenant on Civil and Political Rights which
categorically forbid medical experimentation without consent.

Issue and resolution:

Prohibition on medical experimentation on non-consenting human subjects.


Although the US has not ratified or adopted the above international instruments, the
ATS provides that District Courts have jurisdiction in civil actions committed in
contravention of the law of nations, or customary international law. The Second
Circuit Court of Appeal held that the restriction on medical experimentation without
consent is a norm of international law and is capable of being enforced under the
ATS. The case was subsequently referred back to the District Court for further
proceedings.

Court reasoning:

The Court held that the three-part test to determine whether the restriction was an
obligation under customary international law was satisfied. The test required the
restriction to be (1) universal in nature; (2) specific and definable; and (3) of
mutual concern. The Court gave the following reason for each strand of the test:
(1) The legal principles of the Nuremberg Code and the ICCPR are examples of the
normality and universality of this restriction;
(2) The allegations stated that Pfizer carried out these experiments knowingly and
purposefully which went beyond a simple isolated case of failing to obtain consent,
KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSULTANTS CO., for one do not always provide the necessary “significant contacts” for the other. The
LTD., vs MINORU KITAMURA question of whether the law of a state can be applied to a transaction is different
from the question of whether the courts of that state have jurisdiction to enter a
G.R. No. 149177 judgment.
November 23, 2007
In this case, only the 1st phase is at issue—jurisdiction. Jurisdiction, however, has
FACTS: various aspects. For a court to validly exercise its power to adjudicate a
controversy, it must have jurisdiction over the plaintiff/petitioner, over the
Nippon Engineering Consultants (Nippon), a Japanese consultancy firm providing defendant/respondent, over the subject matter, over the issues of the case and,
technical and management support in the infrastructure projects national in cases involving property, over the res or the thing w/c is the subject of the
permanently residing in the Philippines. The agreement provides that Kitamaru was litigation.In assailing the trial court's jurisdiction herein, Nippon is actually referring
to extend professional services to Nippon for a year. Nippon assigned Kitamaru to to subject matter jurisdiction.
work as the project manager of the Southern Tagalog Access Road (STAR) project.
When the STAR project was near completion, DPWH engaged the consultancy Jurisdiction over the subject matter in a judicial proceeding is conferred by the
services of Nippon, this time for the detailed engineering & construction supervision sovereign authority w/c establishes and organizes the court. It is given only by law
of the Bongabon-Baler Road Improvement (BBRI) Project. Kitamaru was named as and in the manner prescribed by law. It is further determined by the allegations of
the project manger in the contract. the complaint irrespective of whether the plaintiff is entitled to all or some of the
claims asserted therein. To succeed in its motion for the dismissal of an action for
Hasegawa, Nippon’s general manager for its International Division, informed lack of jurisdiction over the subject matter of the claim, the movant must show that
Kitamaru that the company had no more intention of automatically renewing his the court or tribunal cannot act on the matter submitted to it because no
ICA. His services would be engaged by the company only up to the substantial lawgrants it the power to adjudicate the claims.
completion of the STAR Project. Kitamaru demanded that he be assigned to the
BBRI project. Nippon insisted that Kitamaru’s contract was for a fixed term that had In the instant case, Nippon, in its MTD, does not claim that the RTC is not properly
expired. Kitamaru then filed for specific performance & damages w/ the RTC of Lipa vested by law w/ jurisdiction to hear the subject controversy for a civil case for
City. Nippon filed a MTD. specific performance & damages is one not capable of pecuniary estimation & is
properly cognizable by the RTC of Lipa City.What they rather raise as grounds to
Nippon’s contention: The ICA had been perfected in Japan & executed by & between question subject matter jurisdiction are the principles of lex loci
Japanese nationals. Thus, the RTC of Lipa City has no jurisdiction. The claim for celebrationis and lex contractus, and the “state of the most significant relationship
improper pre-termination of Kitamaru’s ICA could only be heard & ventilated in the rule.” The Court finds the invocation of these grounds unsound.
proper courts of Japan following the principles of lex loci celebrationis & lex
contractus. Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of
the place where a contract is made. The doctrine of lex contractus or lex loci
The RTC denied the motion to dismiss. The CA ruled hat the principle of lex loci contractusmeans the “law of the place where a contract is executed or to be
celebrationis was not applicable to the case, because nowhere in the pleadings was performed.” It controls the nature, construction, and validity of the contract and it
the validity of the written agreement put in issue. It held that the RTC was correct may pertain to the law voluntarily agreed upon by the parties or the law intended
in applying the principle of lex loci solutionis. by them either expressly or implicitly. Under the “state of the most significant
relationship rule,” to ascertain what state law to apply to a dispute, the court should
ISSUE: determine which state has the most substantial connection to the occurrence and
the parties. In a case involving a contract, the court should consider where the
Whether or not the subject matter jurisdiction of Philippine courts in civil cases for contract was made, was negotiated, was to be performed, and the domicile, place of
specific performance & damages involving contracts executed outside the country business, or place of incorporation of the parties.This rule takes into account several
by foreign nationals may be assailed on the principles of lex loci celebrationis, lex contacts and evaluates them according to their relative importance with respect to
contractus, “the state of the most significant relationship rule,” or forum non the particular issue to be resolved.
conveniens.
Since these 3 principles in conflict of laws make reference to the law applicable to a
HELD: dispute, they are rules proper for the 2nd phase, the choice of law. They determine
which state's law is to be applied in resolving the substantive issues of a conflicts
NO. In the judicial resolution of conflicts problems, 3 consecutive phases are problem. Necessarily, as the only issue in this case is that of jurisdiction, choice-of-
involved: jurisdiction, choice of law, and recognition and enforcement of judgments. law rules are not only inapplicable but also not yet called for.
Jurisdiction & choice of law are 2 distinct concepts.Jurisdiction considers whether it
is fair to cause a defendant to travel to this state; choice of law asks the further Further, Nippon’s premature invocation of choice-of-law rules is exposed by the fact
question whether the application of a substantive law w/c will determine the merits that they have not yet pointed out any conflict between the laws of Japan and ours.
of the case is fair to both parties. The power to exercise jurisdiction does Before determining which law should apply, 1st there should exist a conflict of laws
notautomatically give a state constitutional authority to apply forum law. While situation requiring theapplication of the conflict of laws rules. Also, when the law of
jurisdiction and the choice of the lex foriwill often coincide, the “minimum contacts”
a foreign country is invoked to provide the proper rules for the solution of a case,
the existence of such law must be pleaded and proved.

It should be noted that when a conflicts case, one involving a foreign element, is
brought before a court or administrative agency, there are 3 alternatives open to
the latter in disposing of it: (1) dismiss the case, either because of lack of
jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction
over the case and apply the internal law of the forum; or (3) assume jurisdiction
over the case and take into account or apply the law of some other State or
States. The court’s power to hear cases and controversies is derived from the
Constitution and the laws. While it may choose to recognize laws of foreign nations,
the court is not limited by foreign sovereign law short of treaties or other
formalagreements, even in matters regarding rights provided by foreign sovereigns.

Neither can the other ground raised, forum non conveniens, be used to deprive the
RTC of its jurisdiction. 1st, it is not a proper basis for a motion to dismiss because
Sec. 1, Rule 16 of the Rules of Court does not include it as a ground. 2nd, whether
a suit should be entertained or dismissed on the basis of the said doctrine depends
largely upon the facts of the particular case and is addressed to the sound discretion
of the RTC. In this case, the RTC decided to assume jurisdiction. 3rd, the propriety
of dismissing a case based on this principle requires a factual determination; hence,
this conflicts principle is more properly considered a matter of defense.
SMALL v. UNITED STATES the statute’s legislative history indicates no intent to reach beyond domestic
convictions. Although the statutory purpose of keeping guns from those likely to
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT become a threat to society does offer some support for reading §922(g)(1) to
No. 03—750.Argued November 3, 2004–Decided April 26, 2005 include foreign convictions, the likelihood that Congress, at best, paid no attention
to the matter is reinforced by the empirical fact that, according to the Government,
Petitioner Small was convicted in a Japanese Court of trying to smuggle firearms since 1968, there have fewer than a dozen instances in which such a foreign
and ammunition into that country. He served five years in prison and then returned conviction has served as a predicate for a felon-in-possession prosecution. Pp. 5—8.
to the United States, where he bought a gun. Federal authorities subsequently
charged Small under 18 U.S.C. § 922(g)(1), which forbids “any person … convicted 333 F.3d 425, reversed and remanded.
in any court … of a crime punishable by imprisonment for a term exceeding one
year … to … possess … any firearm.” (Emphasis added.) Small pleaded guilty while
reserving the right to challenge his conviction on the ground that his earlier
conviction, being foreign, fell outside §922(g)(1)’s scope. The Federal District Court
and the Third Circuit rejected this argument.

Held: Section 922(g)(1)’s phrase “convicted in any court” encompasses only


domestic, not foreign, convictions. Pp. 2—9.

(a) In considering the scope of the phrase “convicted in any court” it is


appropriate to assume that Congress had domestic concerns in mind. This
assumption is similar to the legal presumption that Congress ordinarily intends its
statutes to have domestic, not extraterritorial, application, see, e.g., Foley Bros.,
Inc. v. Filardo, 336 U.S. 281, 285. The phrase “convicted in any court” describes
one necessary portion of the “gun possession” activity that is prohibited as a matter
of domestic law. Moreover, because foreign convictions may include convictions for
conduct that domestic laws would permit, e.g., for engaging in economic conduct
that our society might encourage, convictions from a legal system that are
inconsistent with American understanding of fairness, and convictions for conduct
that domestic law punishes far less severely, the key statutory phrase “convicted in
any court of, a crime punishable by imprisonment for a term exceeding one year”
somewhat less reliably identifies dangerous individuals for the purposes of U.S. law
where foreign convictions, rather than domestic convictions, are at issue. In
addition, it is difficult to read the statute as asking judges or prosecutors to refine
its definitional distinctions where foreign convictions are at issue. To somehow
weed out inappropriate foreign convictions that meet the statutory definition is not
consistent with the statute’s language; it is not easy for those not versed in foreign
laws to accomplish; and it would leave those previously convicted in a foreign court
(say of economic crimes) uncertain about their legal obligations. These
considerations provide a convincing basis for applying the ordinary assumption
about the reach of domestically oriented statutes here. Thus, the Court assumes a
congressional intent that the phrase “convicted in any court” applies domestically,
not extraterritorially, unless the statutory language, context, history, or purpose
shows the contrary. Pp. 2—5.

(b) There is no convincing indication to the contrary here. The statute’s


language suggests no intent to reach beyond domestic convictions. To the contrary,
if read to include foreign convictions, the statute’s language creates anomalies. For
example, in creating an exception allowing gun possession despite a conviction for
an antitrust or business regulatory crime, §921(a)(20)(A) speaks of “Federal or
State” antitrust or regulatory offenses. If the phrase “convicted in any court”
generally refers only to domestic convictions, this language causes no problem. But
if the phrase includes foreign convictions, the words “Federal or State” prevent the
exception from applying where a foreign antitrust or regulatory conviction is at
issue. Such illustrative examples suggest that Congress did not consider whether
the generic phrase “convicted in any court” applies to foreign convictions. Moreover,
ESTHER KIOBEL, ET AL. V. ROYAL DUTCH PETROLEUM, ET AL.

Facts:

The Shell Petroleum Development Company of Nigeria, Ltd., one of the


respondents, operated oil production facilities in the Ogoniland region of Nigeria.
Esther Kiobel and the other petitioners were Nigerian nationals who alleged that
they, or their relatives, were killed, tortured, unlawfully detained, deprived of their
property, and forced into exile by the Nigerian government. The petitioners
maintain that the respondents, including the Shell Petroleum Development
Company were complicit with the Nigerian government's human rights abuses.

The petitioners filed a putative class action against the respondents, under the Alien
Tort Statute in the United States District Court for the Southern District of New
York. The District Court dismissed claims against the corporate defendants in part
and certified its order for interlocutory appeal.

Both parties cross-appealed to the U.S. Court of Appeals for the Second Circuit. The
respondents argued that the law of nations does not attach civil liability to
corporations under any circumstances. The petitioners argued that the liability
should attach to corporate actors, just as it would to private actors. On September
17, 2010, the Second Circuit affirmed dismissal of the lawsuit with the majority
holding that the Alien Tort Statute does not confer jurisdiction over suits against
corporations. On February 4, 2011, the Second Circuit denied the petitioners'
request for panel rehearing and for rehearing en banc. The petitioners filed a second
petition for rehearing en banc and a motion to recall the mandate, which the Second
Circuit denied.

Following oral argument, the Court set the case for reargument in the 2012 Term to
address whether and when the Alien Tort Statute allows courts to recognize a cause
of action for violations of the law of nations occurring within the territory of a
sovereign other than the United States.

Question
1. Under the Alien Tort Statute, are corporations immune from tort liability for
violations of the law of nations, such as torture, extrajudicial executions, or
genocide?

2. Upon reargument, does the Alien Tort Statute allow courts to recognize a cause
of action for violations of the law of nations occurring within the territory of a
sovereign other than the United States?

Conclusion:
As to the second question: no. Chief Justice John G. Roberts Jr. delivered a
unanimous opinion affirming the Second Circuit’s judgment. The Court held that
under the Alien Tort Statute, there is a presumption against extraterritorial
application of U.S. law. This presumption, derived from a traditional canon of
interpretation, serves to protect against clashes between U.S. law and the law of
other nations. The Court reasoned that nothing within the text, history, or purpose
of the statute indicates that it was intended to apply extraterritorially. In order to
rebut this presumption, the petitioners’ claim would have to touch and concern the
territory of the United States with “sufficient force.” Since the statute is presumed
not to apply, the Court did not address the question of whether corporations are
immune from tort liability for violations of the law of nations.
court must determine which substantive law when applied to the merits will be fair
KAZUHIRO HASEGAWA V. MINORU KITAMURA
to both parties.
3. Recognition and Enforcement of Judgment – Where can the resulting judgment
be enforced?
538 SCRA 261 – Conflict of Laws – Private International Law – Jurisdiction – Lex
Loci Celebrationis – Lex Loci Solutionis – State of the Most Significant Relationship –
Forum Non Conveniens This case is not yet in the second phase because upon the RTC’s taking cognizance
of the case, Hasegawa immediately filed a motion to dismiss, which was denied. He
In March 1999, Nippon Engineering Consultants Co., Ltd, a Japanese firm, was filed a motion for reconsideration, which was also denied. Then he bypassed the
contracted by the Department of Public Works and Highways (DPWH) to supervise proper procedure by immediately filing a petition for certiorari. The question of
the construction of the Southern Tagalog Access Road. In April 1999, Nippon which law should be applied should have been settled in the trial court had
entered into an independent contractor agreement (ICA) with Minoru Kitamura for Hasegawa not improperly appealed the interlocutory order denying his MFR.
the latter to head the said project. The ICA was entered into in Japan and is
effective for a period of 1 year (so until April 2000). In January 2000, DPWH
awarded the Bongabon-Baler Road project to Nippon. Nippon subsequently assigned
Kitamura to head the road project. But in February 2000, Kazuhiro Hasegawa, the
general manager of Nippon informed Kitamura that they are pre-terminating his
contract. Kitamura sought Nippon to reconsider but Nippon refused to negotiate.
Kitamura then filed a complaint for specific performance and damages against
Nippon in the RTC of Lipa.
Hasegawa filed a motion to dismiss on the ground that the contract was entered in
Japan hence, applying the principle of lex loci celebracionis, cases arising from the
contract should be cognizable only by Japanese courts. The trial court denied the
motion. Eventually, Nippon filed a petition for certiorari with the Supreme Court.
Hasegawa, on appeal significantly changed its theory, this time invoking forum non
conveniens; that the RTC is an inconvenient forum because the parties are Japanese
nationals who entered into a contract in Japan. Kitamura on the other hand invokes
the trial court’s ruling which states that matters connected with the performance of
contracts are regulated by the law prevailing at the place of performance, so since
the obligations in the ICA are executed in the Philippines, courts here have
jurisdiction.
ISSUE: Whether or not the complaint against Nippon should be dismissed.
HELD: No. The trial court did the proper thing in taking cognizance of it.
In the first place, the case filed by Kitamura is a complaint for specific performance
and damages. Such case is incapable of pecuniary estimation; such cases are within
the jurisdiction of the regional trial court.
Hasegawa filed his motion to dismiss on the ground of forum non conveniens.
However, such ground is not one of those provided for by the Rules as a ground for
dismissing a civil case.
The Supreme Court also emphasized that the contention that Japanese laws should
apply is premature. In conflicts cases, there are three phases and each next phase
commences when one is settled, to wit:

1. Jurisdiction – Where should litigation be initiated? Court must have jurisdiction


over the subject matter, the parties, the issues, the property, the res. Also
considers, whether it is fair to cause a defendant to travel to this state; choice of
law asks the further question whether the application of a substantive law which will
determine the merits of the case is fair to both parties.
2. Choice of Law – Which law will the court apply? Once a local court takes
cognizance, it does not mean that the local laws must automatically apply. The
UNITED STATES OF AMERICA, Plaintiff - Appellant, v. RICHARD ARTHUR Engaging in Illicit Sexual Conduct in Foreign Places.—Any United States citizen or
SCHMIDT, Defendant - Appellee. alien admitted for permanent residence who travels in foreign commerce, and
engages in any illicit sexual conduct with another person shall be fined under this
No. 16-6567 Decided: January 04, 2017 title or imprisoned not more than 30 years, or both.
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.ARGUED: Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellant. As the title implies, § 2423(c) was intended to criminalize “Engaging in Illicit Sexual
Mary Elizabeth Davis, DAVIS & DAVIS, Washington, D.C., for Appellee. ON BRIEF: Conduct in Foreign Places.” It was aimed in part at the “ugly American,” whose
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES sexual exploits and visitation to sexual guesthouses abroad have helped to
ATTORNEY, Baltimore, Maryland, for Appellant. stimulate the sex trade in young children even to the point of wrenching them at an
Richard Schmidt pleaded guilty to traveling in foreign commerce and engaging in early age from their own homes.
illicit sexual conduct in violation of 18 U.S.C. § 2423(c). Schmidt now argues that,
as a matter of law, he did not travel in foreign commerce in connection with his The statute expanded upon 18 U.S.C. § 2423(b), which had been previously
illicit sexual conduct and is thus actually innocent of the offense. The district court enacted to criminalize “Travel With Intent To Engage in Illicit Sexual Conduct.”
agreed. We review the judgment of the district court de novo, and for the reasons Congress recognized the difficulty of proving that a defendant traveled “for the
that follow, we reverse. purpose of” engaging in illicit sexual conduct, id., and passed § 2423(c) to “close
loopholes that facilitated the abuse of children abroad by sex tourists,” United
I. In the words of the district court, Schmidt is a “sexual predator.” United States v. States v. Bollinger, 798 F.3d 201, 219 (4th Cir. 2015). As the House Conference
Schmidt, Civ. No. JFM-13-3370, 2015 WL 5440732, at *1 (D. Md. Sept. 11, 2015). Report explained, “Current law [§ 2423(b)] requires the government to prove that
He has been repeatedly convicted since 1984 for extensive and grotesque sex the defendant traveled with the intent to engage in the illegal activity. Under this
offenses involving young boys. section [§ 2423(c)], the government would only have to prove that the defendant
engaged in illicit sexual conduct with a minor while in a foreign country.” H.R.
In June 2002, Schmidt fled the United States to the Philippines to avoid arrest for CONF. REP. NO. 108–66, at 51 (2003), reprinted in 2003 U.S.C.C.A.N. 683, 686.2
allegedly making unauthorized contact with a minor in violation of his parole. He
obtained employment there as a school instructor until he was arrested by We construe the statute accordingly.
Philippine authorities for once again sexually molesting young boys. In December
2003, Schmidt fled to Cambodia during a period of pre-trial release, roughly B. Merriam-Webster's Collegiate Dictionary defines “travel” as “to go on or as if on a
eighteen months after he first arrived in the Philippines. His pattern of sex offenses trip or tour,” “to go from place to place,” and “to move or undergo transmission
nonetheless continued until he was arrested by Cambodian authorities that same from one place to another.” MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1331
month. He was soon released on “police watch” only to rape another young boy (11th ed. 2003). Neither party contends that prohibited sexual conduct must occur
within two days. As a result, Schmidt was deported to the United States to face en route from one place to another, and such a narrow construction of travel would
numerous criminal charges, including a violation of § 2423(c) in Count 10 of his surely defeat the intent of Congress. See United States v. Clark, 435 F.3d 1100,
indictment for illicit sexual conduct in Cambodia. Schmidt pleaded unconditionally 1107 (9th Cir. 2006) (“It [§ 2423(c)] does not require that the conduct occur while
guilty to this charge and was sentenced to a prison term of fifteen years and a traveling in foreign commerce.”). Rather, travel denotes a broader concept of
lifetime of supervised release.1 movement abroad. A person may still be traveling even after a significant amount of
time in a given location so long as the visit is sufficiently transient or contemplates
Schmidt now petitions under 28 U.S.C. § 2255 to vacate his conviction, arguing that some future departure. See United States v. Jackson, 480 F.3d 1014, 1022 (9th Cir.
he is actually innocent of violating § 2423(c) and that his counsel was ineffective for 2007). Travel can thus continue until a party either returns to his or her place of
failing to notice this defect at the time he entered his plea. Schmidt does not deny origin or permanently resettles elsewhere. As the Ninth Circuit has observed, “[A]n
his illicit sexual conduct. Instead, Schmidt contends that his travel in foreign understanding that travel ends only upon permanent resettlement in a foreign
commerce ended during his stay in the Philippines, long before his illicit sexual country is supported by courts' regular use of a distinction between individuals who
conduct in Cambodia. He further claims that any subsequent travel, such as his are physically present without intending to stay in a locale and those who are
flight to Cambodia, was not independent travel in foreign commerce for purposes of present with an intent to remain. People in the first category are usually considered
§ 2423(c). mere visitors, while people in the second category are considered residents or
domiciliaries of the new location.” Id. at 1023-24. This construction “comports with
We are therefore presented with a straightforward question. When did Schmidt's colloquial usage.” Id. at 1023.
travel in foreign commerce end after he departed the United States? Because we
conclude that Schmidt was still traveling in foreign commerce from the time he Next, 18 U.S.C. § 10 defines “foreign commerce,” in language that largely parallels
departed the United States until the time of his illicit sexual conduct in Cambodia, the Foreign Commerce Clause, to include “commerce with a foreign country.” We
we conclude that he is not actually innocent of the § 2423(c) offense. have previously noted, focusing on the conjunctive “with,” that foreign commerce
requires some nexus with the United States. See Bollinger, 798 F.3d at 214. This
II. A. Congress enacted § 2423(c) as part of the Prosecutorial Remedies and Other makes sense: The United States cannot go around prosecuting under the statute
Tools to End the Exploitation of Children Today (“PROTECT”) Act of 2003, Pub. L. those with no real connection to this country. See United States v. Pendleton, 658
No. 108-21, § 105(a), 117 Stat. 650, 654 (2003). At the time of Schmidt's offense, F.3d 299, 307-08 (3d Cir. 2011) (“Courts have consistently held that the Foreign
it read: Commerce Clause requires a jurisdictional nexus ‘with’ the United States, but there
is precious little case law on how to establish the requisite link ․” (citations
omitted)); United States v. Weingarten, 632 F.3d 60, 70 (2d Cir. 2011) (“[I]t would defeat the clear design of the statute. A defendant might make a quick stop and
be anomalous to construe the general definition of ‘foreign commerce’ in § 10 ․ as then proceed elsewhere cloaked in an artificial immunity from prosecution. See
including all forms of commerce occurring outside the United States and without Weingarten, 632 F.3d at 71. Intermediate stops of longer duration are likewise
nexus whatsoever to this country.”). The statutory history of § 10 reinforces this inapposite until a party returns to his or her place of origin or permanently resettles.
requirement. See Weingarten, 632 F.3d at 67-70. See id. (“[M]ere stops along the way do not deprive travel of its territorial nexus to
the United States.”).
Travel in foreign commerce therefore encompasses movement abroad that
maintains some nexus with the United States. We consider all relevant facts and Schmidt finally emphasizes that he had no intent to return to the United States and
circumstances to determine whether and to what extent a defendant traveled in thus his travel in foreign commerce necessarily concluded shortly after he arrived in
foreign commerce. the Philippines. However, the element of travel and requisite nexus with the United
States is an objective inquiry that does not turn solely on self-serving and
III. A. subjective allegations of intent. While intent to permanently resettle may be one
factor in determining when relevant travel in foreign commerce comes to an end, it
Schmidt does not contest that he traveled in foreign commerce when he fled the is not dispositive. In any event, the record here does not support Schmidt's claim.
United States to the Philippines. Movement directly to or from the United States is
unquestionably an adequate nexus. Instead, Schmidt argues that his travel in United States v. Jackson is instructive by comparison. The Ninth Circuit there
foreign commerce ended shortly thereafter. He points out that he obtained a work concluded that the defendant's travel in foreign commerce ended after he moved to
permit and full-time employment, rented a home, and used a local driver's license Cambodia, purchased a home, and commenced the five-year residency requirement
in the Philippines. He further argues that the eighteen months he spent there was for Cambodian citizenship. 480 F.3d at 1015-16, 1024. The defendant and his
sufficient to indicate that his travel had ended, or at least to sever any nexus with partner also sold their home and remaining property in the United States,
the United States. As a result, Schmidt contends that he was no longer traveling in transferring all their assets to Cambodia. Id. Schmidt's sojourns display none of
foreign commerce when he fled to and engaged in illicit sexual conduct in these features.4
Cambodia.
IV. The judgment of the district court is accordingly reversed. We remand for
We disagree. Schmidt overlooks a number of more significant factors. To begin, his reinstatement of the judgment of conviction on Count 10, which charged defendant
status remained transient from the time he left the United States until the time of with the aforementioned § 2423(c) offense.
his illicit sexual conduct in Cambodia. He stayed in the Philippines on a series of
two-month tourist visas and worked using an “alien employment permit” for “non- REVERSED
resident foreign nationals” that he apparently allowed to lapse before renewing. J.A.
223-24. Schmidt also maintained a substantial amount of money in the United FOOTNOTES
States, and never purchased a home or other property abroad.
1. Schmidt also pleaded guilty to Count 7 of his indictment, which the
When Schmidt's unlawful sexual conduct attracted the attention of Philippine government has conceded was defective.
authorities, he had no trouble making a quick pivot to Cambodia. Unlike when he
fled the United States leaving significant assets behind, Schmidt fled the Philippines 2. In 2013, Congress amended § 2423(c) to criminalize illicit sexual conduct by
leaving no trace beyond the ruin caused by his sexual exploits. He then entered any United States citizen who “travels in foreign commerce or resides, either
Cambodia on a one-month tourist visa and frequented guesthouses known to attract temporarily or permanently, in a foreign country.” Pub. L. No. 113-4, § 1211(b),
sex tourists. 127 Stat. 54, 142 (2013) (emphasis added). To the extent Congress meant to
clarify the original meaning of § 2423(c), the Supreme Court has held that
We specifically note that Schmidt continually traveled on a United States passport “[s]ubsequent legislation declaring the intent of an earlier statute is entitled to great
and made no effort to obtain permanent status in another country. At all times, he weight in statutory construction.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380–
was a visitor in both the Philippines and Cambodia. The sum of these factors is more 81 (1969).
than sufficient to establish for purposes of § 2423(c) that Schmidt was still traveling
in foreign commerce from the time he left the United States until the time of his 3. Schmidt's conviction does not present an ex post facto problem because he
illicit sexual conduct in Cambodia. Contrary to his protestations of permanency, was still traveling in foreign commerce and engaging in illicit sexual conduct after §
Schmidt was something of a rolling stone.3 2423(c) was enacted on April 30, 2003. Count 10 charged Schmidt with violating §
2423(c) in December 2003.
B.
4. Schmidt's continuous course of travel makes it unnecessary to address the
Schmidt contends, however, that travel in foreign commerce necessarily ends government's contention that § 2423(c) applies to illicit sexual conduct even after
sometime during the first stop after departure and that the requisite nexus with the travel in foreign commerce has concluded. Similarly, what might qualify as a nexus
United States is thereafter severed. But nothing in § 2423(c) indicates that illicit to the United States, or how attenuated a nexus might be permitted, are questions
sexual conduct must take place immediately or even shortly after leaving the United we need not decide.
States, or that a single course of travel is limited to a single destination. Common
sense refutes any such notion. Schmidt's theory would allow a simple layover to WILKINSON, Circuit Judge:
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al. Held:

certiorari to the united states court of appeals for the district of columbia circuit 1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the
instant cases, that were pending at the time of its enactment. Section §7(b)’s
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008* effective date provision undoubtedly applies to habeas actions, which, by definition,
“relate to … detention” within that section’s meaning. Petitioners argue to no avail
In the Authorization for Use of Military Force (AUMF), Congress empowered the that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other
President “to use all necessary and appropriate force against those … he determines action” under §2241(e)(2), because it largely repeats that section’s language. The
planned, authorized, committed, or aided the terrorist attacks … on September 11, phrase “other action” in §2241(e)(2) cannot be understood without referring back to
2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two
recognized that detaining individuals captured while fighting against the United paragraphs’ structure implies that habeas is a type of action “relating to any aspect
States in Afghanistan for the duration of that conflict was a fundamental and of … detention,” etc., pending habeas actions are in the category of cases subject to
accepted incident to war. Thereafter, the Defense Department established the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history.
Combatant Status Review Tribunals (CSRTs) to determine whether individuals Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.
detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy
combatants.” 2. Petitioners have the constitutional privilege of habeas corpus. They are not
barred from seeking the writ or invoking the Suspension Clause’s protections
Petitioners are aliens detained at Guantanamo after being captured in because they have been designated as enemy combatants or because of their
Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. presence at Guantanamo. Pp. 8–41.
Denying membership in the al Qaeda terrorist network that carried out the
September 11 attacks and the Taliban regime that supported al Qaeda, each (a) A brief account of the writ’s history and origins shows that protection for the
petitioner sought a writ of habeas corpus in the District Court, which ordered the habeas privilege was one of the few safeguards of liberty specified in a Constitution
cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. that, at the outset, had no Bill of Rights; in the system the Framers conceived, the
S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. writ has a centrality that must inform proper interpretation of the Suspension
C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, Clause. That the Framers considered the writ a vital instrument for the protection of
542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. individual liberty is evident from the care taken in the Suspension Clause to specify
In the first, the district judge granted the Government’s motion to dismiss, holding the limited grounds for its suspension: The writ may be suspended only when public
that the detainees had no rights that could be vindicated in a habeas action. In the safety requires it in times of rebellion or invasion. The Clause is designed to protect
second, the judge held that the detainees had due process rights. against cyclical abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitution’s essential
While appeals were pending, Congress passed the Detainee Treatment Act of design, ensuring that, except during periods of formal suspension, the Judiciary will
2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no have a time-tested device, the writ, to maintain the “delicate balance of
court, justice, or judge shall have jurisdiction to … consider … an application for … governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the
habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–
gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In 15.
Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision
inapplicable to cases (like petitioners’) pending when the DTA was enacted. (b) A diligent search of founding-era precedents and legal commentaries reveals
Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of no certain conclusions. None of the cases the parties cite reveal whether a common-
which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by law court would have granted, or refused to hear for lack of jurisdiction, a habeas
detained aliens determined to be enemy combatants, while §2241(e)(2) denies petition by a prisoner deemed an enemy combatant, under a standard like the
jurisdiction as to “any other action against the United States … relating to any Defense Department’s in these cases, and when held in a territory, like
aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a Guantanamo, over which the Government has total military and civil control. The
detained alien determined to be an enemy combatant. MCA §7(b) provides that the evidence as to the writ’s geographic scope at common law is informative, but,
2241(e) amendments “shall take effect on the date of the enactment of this Act, again, not dispositive. Petitioners argue that the site of their detention is analogous
and shall apply to all cases, without exception, pending on or after [that] date … to two territories outside England to which the common-law writ ran, the exempt
which relate to any aspect of the detention, transfer, treatment, trial, or conditions jurisdictions and India, but critical differences between these places and
of detention of an alien detained … since September 11, 2001.” Guantanamo render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover, where the writ did
The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, not run, but it is unclear whether the common-law courts lacked the power to issue
and all federal courts, jurisdiction to consider petitioners’ habeas applications; that the writ there, or whether they refrained from doing so for prudential reasons. The
petitioners are not entitled to habeas or the protections of the Suspension Clause, parties’ arguments that the very lack of a precedent on point supports their
U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of respective positions are premised upon the doubtful assumptions that the historical
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or record is complete and that the common law, if properly understood, yields a
Invasion the public Safety may require it”; and that it was therefore unnecessary to definite answer to the questions before the Court. Pp. 15–22.
consider whether the DTA provided an adequate and effective substitute for habeas.
(c) The Suspension Clause has full effect at Guantanamo. The Government’s Constitution on or off at will would lead to a regime in which they, not this Court,
argument that the Clause affords petitioners no rights because the United States say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have
does not claim sovereignty over the naval station is rejected. Pp. 22–42. particular bearing upon the Suspension Clause question here, for the habeas writ is
itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–
(i) The Court does not question the Government’s position that Cuba 36.
maintains sovereignty, in the legal and technical sense, over Guantanamo, but it
does not accept the Government’s premise that de jure sovereignty is the (iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its
touchstone of habeas jurisdiction. Common-law habeas’ history provides scant other extraterritoriality opinions, at least three factors are relevant in determining
support for this proposition, and it is inconsistent with the Court’s precedents and the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the
contrary to fundamental separation-of-powers principles. Pp. 22–25. adequacy of the process through which that status was determined; (2) the nature
of the sites where apprehension and then detention took place; and (3) the practical
(ii) Discussions of the Constitution’s extraterritorial application in cases obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of
involving provisions other than the Suspension Clause undermine the Government’s this framework reveals, first, that petitioners’ status is in dispute: They are not
argument. Fundamental questions regarding the Constitution’s geographic scope American citizens, but deny they are enemy combatants; and although they have
first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded been afforded some process in CSRT proceedings, there has been no Eisentrager–
by Spain after the Spanish-American War, and Congress discontinued its prior style trial by military commission for violations of the laws of war. Second, while the
practice of extending constitutional rights to territories by statute. In the so-called sites of petitioners’ apprehension and detention weigh against finding they have
Insular Cases, the Court held that the Constitution had independent force in the Suspension Clause rights, there are critical differences between Eisentrager’s
territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the
United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent Government’s absolute and indefinite control over the naval station. Third, although
in transforming the former Spanish colonies’ civil-law system into an Anglo- the Court is sensitive to the financial and administrative costs of holding the
American system, the Court adopted the doctrine of territorial incorporation, under Suspension Clause applicable in a case of military detention abroad, these factors
which the Constitution applies in full in incorporated Territories surely destined for are not dispositive because the Government presents no credible arguments that
statehood but only in part in unincorporated Territories. See, e.g., id., at 143. the military mission at Guantanamo would be compromised if habeas courts had
Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, jurisdiction. The situation in Eisentrager was far different, given the historical
354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth context and nature of the military’s mission in post-War Germany. Pp. 36–41.
Amendments to American civilians being tried by the U. S. military abroad, both the
plurality and the concurrences noted the relevance of practical considerations, (d) Petitioners are therefore entitled to the habeas privilege, and if that
related not to the petitioners’ citizenship, but to the place of their confinement and privilege is to be denied them, Congress must act in accordance with the
trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, Suspension Clause’s requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42.
convicted of violating the laws of war, who were detained in a German prison during
the Allied Powers’ post-World War II occupation, the Court, in Johnson v. 3. Because the DTA’s procedures for reviewing detainees’ status are not an
Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the adequate and effective substitute for the habeas writ, MCA §7 operates as an
production of the prisoners, id., at 779. The Government’s reading of Eisentrager as unconstitutional suspension of the writ. Pp. 42–64.
adopting a formalistic test for determining the Suspension Clause’s reach is rejected
because: (1) the discussion of practical considerations in that case was integral to a (a) Given its holding that the writ does not run to petitioners, the D. C. Circuit
part of the Court’s opinion that came before it announced its holding, see id., at found it unnecessary to consider whether there was an adequate substitute for
781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, habeas. This Court usually remands for consideration of questions not decided
in contrast to its significant discussion of practical barriers to the running of the below, but departure from this rule is appropriate in “exceptional” circumstances,
writ; and (3) if the Government’s reading were correct, the opinion would have see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here,
marked not only a change in, but a complete repudiation of, the Insular Cases’ (and the grave separation-of-powers issues raised by these cases and the fact that
later Reid’s) functional approach. A constricted reading of Eisentrager overlooks petitioners have been denied meaningful access to a judicial forum for years. Pp.
what the Court sees as a common thread uniting all these cases: The idea that 42–44.
extraterritoriality questions turn on objective factors and practical concerns, not
formalism. Pp. 25–34. (b) Historically, Congress has taken care to avoid suspensions of the writ. For
example, the statutes at issue in the Court’s two leading cases addressing habeas
(iii) The Government’s sovereignty-based test raises troubling separation-of- substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U.
powers concerns, which are illustrated by Guantanamo’s political history. Although S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases
the United States has maintained complete and uninterrupted control of provide little guidance here because, inter alia, the statutes in question gave the
Guantanamo for over 100 years, the Government’s view is that the Constitution has courts broad remedial powers to secure the historic office of the writ, and included
no effect there, at least as to noncitizens, because the United States disclaimed saving clauses to preserve habeas review as an avenue of last resort. In contrast,
formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be Congress intended the DTA and the MCA to circumscribe habeas review, as is
contracted away like this. The Constitution grants Congress and the President the evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language,
power to acquire, dispose of, and govern territory, not the power to decide when from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether
and where its terms apply. To hold that the political branches may switch the the CSRT complied with the “standards and procedures specified by the Secretary of
Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either no longer pertain here. In some instances six years have elapsed without the
Act. That Congress intended to create a more limited procedure is also confirmed by judicial oversight that habeas corpus or an adequate substitute demands. To require
the legislative history and by a comparison of the DTA and the habeas statute that these detainees to pursue the limited structure of DTA review before proceeding
would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress with habeas actions would be to require additional months, if not years, of delay.
authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating This holding should not be read to imply that a habeas court should intervene the
the necessity for factfinding that will arise in some cases by allowing the appellate moment an enemy combatant steps foot in a territory where the writ runs. Except
judge or Justice to transfer the case to a district court. See §2241(b). However, by in cases of undue delay, such as the present, federal courts should refrain from
granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA entertaining an enemy combatant’s habeas petition at least until after the CSRT has
§1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44–49. had a chance to review his status. Pp. 64–67.

(c) This Court does not endeavor to offer a comprehensive summary of the (b) In effectuating today’s holding, certain accommodations—including
requisites for an adequate habeas substitute. It is uncontroversial, however, that channeling future cases to a single district court and requiring that court to use its
the habeas privilege entitles the prisoner to a meaningful opportunity to discretion to accommodate to the greatest extent possible the Government’s
demonstrate that he is being held pursuant to “the erroneous application or legitimate interest in protecting sources and intelligence gathering methods—should
interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas be made to reduce the burden habeas proceedings will place on the military,
court must have the power to order the conditional release of an individual without impermissibly diluting the writ’s protections. Pp. 67–68.
unlawfully detained. But more may be required depending on the circumstances.
Petitioners identify what they see as myriad deficiencies in the CSRTs, the most 5. In considering both the procedural and substantive standards used to impose
relevant being the constraints upon the detainee’s ability to rebut the factual basis detention to prevent acts of terrorism, the courts must accord proper deference to
for the Government’s assertion that he is an enemy combatant. At the CSRT stage the political branches. However, security subsists, too, in fidelity to freedom’s first
the detainee has limited means to find or present evidence to challenge the principles, chief among them being freedom from arbitrary and unlawful restraint
Government’s case, does not have the assistance of counsel, and may not be aware and the personal liberty that is secured by adherence to the separation of powers.
of the most critical allegations that the Government relied upon to order his Pp. 68–70.
detention. His opportunity to confront witnesses is likely to be more theoretical than
real, given that there are no limits on the admission of hearsay. The Court therefore 476 F. 3d 981, reversed and remanded.
agrees with petitioners that there is considerable risk of error in the tribunal’s
findings of fact. And given that the consequence of error may be detention for the Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter,
duration of hostilities that may last a generation or more, the risk is too significant Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which
to ignore. Accordingly, for the habeas writ, or its substitute, to function as an Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which
effective and meaningful remedy in this context, the court conducting the collateral Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which
proceeding must have some ability to correct any errors, to assess the sufficiency of Roberts, C. J., and Thomas and Alito, JJ., joined.
the Government’s evidence, and to admit and consider relevant exculpatory
evidence that was not introduced during the earlier proceeding. In re Yamashita, * Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al. v. United
327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49– States et al., also on certiorari to the same court.
57.

(d) Petitioners have met their burden of establishing that the DTA review
process is, on its face, an inadequate substitute for habeas. Among the
constitutional infirmities from which the DTA potentially suffers are the absence of
provisions allowing petitioners to challenge the President’s authority under the
AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to
supplement the record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be read to contain
each of these constitutionally required procedures. MCA §7 thus effects an
unconstitutional suspension of the writ. There is no jurisdictional bar to the District
Court’s entertaining petitioners’ claims. Pp. 57–64.

4. Nor are there prudential barriers to habeas review. Pp. 64–70.

(a) Petitioners need not seek review of their CSRT determinations in the D. C.
Circuit before proceeding with their habeas actions in the District Court. If these
cases involved detainees held for only a short time while awaiting their CSRT
determinations, or were it probable that the Court of Appeals could complete a
prompt review of their applications, the case for requiring temporary abstention or
exhaustion of alternative remedies would be much stronger. But these qualifications
SAUDI ARABIAN AIRLINES (SAUDIA) AND BRENDA J. BETIA, Petitioners, v. The Court stated in the case;
MA. JOPETTE M. REBESENCIO, MONTASSAH B. SACAR-ADIONG, ROUEN
RUTH A. CRISTOBAL AND LORAINE S. SCHNEIDER-CRUZ, Respondents. Saudia asserts that stipulations set in the Cabin Attendant contracts require the
application of the laws of Saudi Arabia. It insists that the need to comply with these
The Facts of the Case. stipulations calls into operation the doctrine of forum non conveniens and, in turn,
makes it necessary for Philippine tribunals to refrain from exercising jurisdiction.
In this case, Respondents (complainants before the Labor Arbiter) were recruited Forum non conveniens, like the rules of forum shopping, litis pendentia, and res
and hired by Saudia as Temporary Flight Attendants with the accreditation and judicata, is a means of addressing the problem of parallel litigation. While the rules
approval of the Philippine Overseas Employment Administration. After undergoing of forum shopping, litis pendentia, and res judicata are designed to address the
seminars required by the Philippine Overseas Employment Administration for problem of parallel litigation within a single jurisdiction, forum non conveniens is a
deployment overseas, as well as training modules offered by Saudia (e.g., initial means devised to address parallel litigation arising in multiple jurisdictions.
flight attendant/training course and transition training), and after working as
Temporary Flight Attendants, respondents became Permanent Flight Attendants. On the matter of pleading forum non conveniens, we state the rule, thus: Forum
They then entered into Cabin Attendant contracts with Saudia: Ma. Jopette M. non conveniens must not only be clearly pleaded as a ground for dismissal; it must
Rebesencio (Ma. Jopette) on May 16, 1990; Montassah B. Sacar-Adiong be pleaded as such at the earliest possible opportunity. Otherwise, it shall be
(Montassah) and Rouen Ruth A. Cristobal (Rouen Ruth) on May 22, 1993; and deemed waived.
Loraine Schneider-Cruz (Loraine) on August 27, 1995.
It further stated:
Respondents continued their employment with Saudia until they were separated Forum non conveniens finds no application and does not operate to divest Philippine
from service on various dates in 2006. Respondents contended that the termination tribunals of jurisdiction and to require the application of foreign law. Saudia invokes
of their employment was illegal. They alleged that the termination was made solely forum non conveniens to supposedly effectuate the stipulations of the Cabin
because they were pregnant. Attendant contracts that require the application of the laws of Saudi Arabia.

Saudia anchored its disapproval of respondents’ maternity leaves and demand for xxx
their resignation on its “Unified Employment Contract for Female Cabin Attendants”
(Unified Contract). Under the Unified Contract, the employment of a Flight So informed and animated, we emphasize the glaringly discriminatory nature of
Attendant who becomes pregnant is rendered void. It provides: Saudia’s policy. As argued by respondents, Saudia’s policy entails the termination of
employment of flight attendants who become pregnant. At the risk of stating the
(H) Due to the essential nature of the Air Hostess functions to be physically fit on obvious, pregnancy is an occurrence that pertains specifically to women. Saudia’s
board to provide various services required in normal or emergency cases on both policy excludes from and restricts employment on the basis of no other
domestic/international flights beside her role in maintaining continuous safety and consideration but sex.
security of passengers, and since she will not be able to maintain the required
medical fitness while at work in case of pregnancy, accordingly, if the Air Hostess We do not lose sight of the reality that pregnancy does present physical limitations
becomes pregnant at any time during the term of this contract, this shall render her that may render difficult the performance of functions associated with being a flight
employment contract as void and she will be terminated due to lack of medical attendant. Nevertheless, it would be the height of iniquity to view pregnancy as a
fitness.(Emphasis supplied) disability so permanent and immutable that it must entail the termination of one’s
employment. It is clear to us that any individual, regardless of gender, may be
On November 8, 2007, respondents filed a Complaint against Saudia and its officers subject to exigencies that limit the performance of functions. However, we fail to
for illegal dismissal and for underpayment of salary, overtime pay, premium pay for appreciate how pregnancy could be such an impairing occurrence that it leaves no
holiday, rest day, premium, service incentive leave pay, 13th month pay, separation other recourse but the complete termination of the means through which a woman
pay, night shift differentials, medical expense reimbursements, retirement benefits, earns a living.
illegal deduction, lay-over expense and allowances, moral and exemplary damages,
and attorney’s fees. Oddly enough, the petitioner Saudia themselves stated that the Saudi law does not
allow the termination of employment of women who take maternity leaves;
The issue to be resolved in the instant case is whether or not there was an illegal
dismissal of the respondents? Consistent with lex loci intentionis, to the extent that it is proper and practicable
(i.e., “to make an intelligent decision”), Philippine tribunals may apply the foreign
The Supreme Court's Decision. law selected by the parties. In fact, (albeit without meaning to make a
Yes, the respondents were illegally dismissed. pronouncement on the accuracy and reliability of respondents’ citation) in this case,
respondents themselves have made averments as to the laws of Saudi Arabia. In
The initial issue here was whether or not the Philippine courts have jurisdiction over their Comment, respondents write:
the case. Petitioner Saudia states that the Philippine courts have no jurisdiction and
that the law that should be applied in the instant case is Saudi Arabia law. The Under the Labor Laws of Saudi Arabia and the Philippines[,] it is illegal and unlawful
Court stated that this is incorrect. The Court has jurisdiction in this case. to terminate the employment of any woman by virtue of pregnancy. The law in
Saudi Arabia is even more harsh and strict [sic] in that no employer can terminate
the employment of a female worker or give her a warning of the same while on
Maternity Leave, the specific provision of Saudi Labor Laws on the matter is hereto
quoted as follows: “An employer may not terminate the employment of a female
worker or give her a warning of the same while on maternity leave.” (Article 155,
Labor Law of the Kingdom of Saudi Arabia, Royal Decree No. M/51.)

The Court then decided:


WHEREFORE, with the MODIFICATIONS that first, petitioner Brenda J. Betia is not
solidarily liable with petitioner Saudi Arabian Airlines, and second, that petitioner
Saudi Arabian Airlines is liable for moral and exemplary damages. The June 16,
2011 Decision and the September 13, 2011 Resolution of the Court of Appeals in
CA-G.R. SP. No. 113006 are hereby AFFIRMED in all other respects. Accordingly,
petitioner Saudi Arabian Airlines is ordered to pay respondents:
( 1) Full backwages and all other benefits computed from the respective dates in
which each of the respondents were illegally terminated until the finality of this
Decision;
(2) Separation pay computed from the respective dates in which each of the
respondents commenced employment until the finality of this Decision at the rate of
one ( 1) month's salary for every year of service, with a fraction of a year of at least
six ( 6) months being counted as one ( 1) whole year;
(3) Moral damages in the amount of Pl00,000.00 per respondent;
(4) Exemplary damages in th~ amount of P200,000.00 per
respondent; and
(5) Attorney's fees equivalent to 10% of the total award. Interest of 6% per annum
shall likewise be imposed on the total judgment award from the finality of this
Decision until full satisfaction thereof.

This. case is REMANDED. to the Labor Arbiter to make a detailed computation of the
amounts due to respondents which petitioner Saudi Arabian Airlines should pay
without delay.
HWANG GEUM JOO, et al., Appellants v. JAPAN, Minister Yohei Kono, certiorari, vacated our judgment, and remanded the case to this court for further
Minister of Foreign Affairs, Appellee. consideration in light of Altmann. Hwang Geum Joo v. Japan, 542 U.S. 901, 124
S.Ct. 2835, 159 L.Ed.2d 265 (2004).
No. 01-7169.
Decided: June 28, 2005 II. Analysis
Before:  GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit
Judges.Agnieszka M. Fryszman argued the cause for appellants. With her on the The appellants again urge this court to reverse the district court's holding that their
briefs were Michael D. Hausfeld, Barry A. Fisher, David Grosz, and Bill Lann Lee. claims are not “based upon ․ act[s] ․ in connection with a commercial activity,” 28
Jenny S. Martinez argued the cause for amici curiae Askin, et al. in support of U.S.C. § 1605(a)(2), and to remand the case to the district court for it to decide in
appellants. With her on the brief were David A. Handzo and Richard Heideman. the first instance whether Japan's alleged actions “cause[d] a direct effect in the
Craig A. Hoover argued the cause for appellee. With him on the brief were United States.” Id. Japan, and the United States as amicus curiae, again argue that
Jonathan S. Franklin and Lorane F. Hebert. Sharon Swingle, Attorney, U.S. Japan enjoys sovereign immunity because its alleged activities were not commercial
Department of Justice, argued the cause for amicus curiae United States of America and, in any event, that the appellants' complaint presents a nonjusticiable political
in support of appellee. With her on the brief were Peter D. Keisler, Assistant question.
Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B. Stern,
Attorney. As explained below, we agree with the latter argument and therefore do not address
We again review the district court's dismissal of the appellants' complaint alleging the issue of sovereign immunity. The appellants, however, citing Steel Co. v.
Japanese soldiers “routinely raped, tortured ․ [and] mutilated” them, along with Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210
thousands of other women, in occupied countries before and during World War II. (1998), contend that “[b]efore reaching [the] political question [doctrine], this
Hwang Geum Joo v. Japan, 332 F.3d 679, 681 (D.C.Cir.2003). The case returns to [c]ourt must establish jurisdiction” under the FSIA. We turn first to that issue.
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 A. The Order of Proceeding
that the case presents a nonjusticiable political question, namely, whether the
governments of the appellants' countries foreclosed the appellants' claims in the As the Supreme Court stated in Steel Co., “For a court to pronounce upon the
peace treaties they signed with Japan. 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
I. Background court must therefore “address questions pertaining to its or a lower court's
jurisdiction before proceeding to the merits.” Tenet v. Doe, 544 U.S. 1, ---- n. 4,
The facts of this case are set forth in our previous opinion, id. at 680-81. In brief, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82 (2005).
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. The appellants apparently assume, but point to no authority suggesting, a
§ 1350, “seeking money damages for [allegedly] having been subjected to sexual dismissal under the political question doctrine is an adjudication on the merits.
slavery and torture before and during World War II,” in violation of “both positive That is not how the Supreme Court sees the matter:
and customary international law.” 332 F.3d at 680, 681.
[T]he concept of justiciability, which expresses the jurisdictional limitations imposed
The district court dismissed the appellants' complaint, Hwang Geum Joo v. Japan, upon federal courts by the ‘case or controversy’ requirement of Art. III, embodies ․
172 F.Supp.2d 52, 63 (D.D.C.2001), concluding first that Japan's alleged activities the ․ political question doctrine[ ] ․ [T]he presence of a political question [thus]
did not “arise in connection with a commercial activity” and therefore did not fall suffices to prevent the power of the federal judiciary from being invoked by the
within the commercial activity exception in the Foreign Sovereign Immunities Act complaining party.
(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 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct.
conduct caused a ‘direct effect’ in the United States.” 172 F.Supp.2d at 64 n. 8. 2925, 41 L.Ed.2d 706 (1974).
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 Moreover, Steel Co. “does not dictate a sequencing of jurisdictional issues.”
war was clearly aimed at resolving all war claims against Japan.” Id. at 67. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d
760 (1999) (within court's discretion to address personal jurisdiction before subject-
We affirmed on the ground that Japan would have been afforded absolute immunity matter jurisdiction);  see also Toca Producers v. FERC, 411 F.3d 262, 264
from suit in the United States at the time of the alleged activities, 332 F.3d at 685, (D.C.Cir.2005) (addressing ripeness before standing). Rather, as this court held In
and that the Congress did not manifest a clear intent for the commercial activity re Papandreou, “a court that dismisses on other non-merits grounds such as forum
exception to apply retroactively to events prior to May 19, 1952, when the State non conveniens and personal jurisdiction, before finding subject-matter jurisdiction,
Department first espoused the restrictive theory of immunity later codified in the makes no assumption of law-declaring power that violates the separation of powers
FSIA, id. at 686. The Supreme Court, however, held in Republic of Austria v. principles underlying ․ Steel Company.” 139 F.3d 247, 255 (1998). As the
Altmann, 541 U.S. 677, 699, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), that the FSIA Supreme Court stated in Tenet, “application of the Totten rule of dismissal, [92 U.S.
applies to all cases filed thereunder “regardless of when the underlying conduct 105, 23 L.Ed. 605 (1876),] like the abstention doctrine of Younger v. Harris, 401
occurred.” Accordingly, the Court granted the appellants' petition for a writ of U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or the prudential standing doctrine,
represents the sort of ‘threshold question’ we have recognized may be resolved 702, 124 S.Ct. 2240;  see also id. at 714, 124 S.Ct. 2240 (Breyer, J., concurring)
before addressing jurisdiction.” 125 S.Ct. at 1235 n. 4. Likewise, we need not (citing district court's opinion in this case).
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 With these principles in mind, we turn to “the particular question posed” in this
FSIA, see Creighton Ltd. v. Gov't of the State of Qatar, 181 F.3d 118, 121 case, Baker, 369 U.S. at 211, 82 S.Ct. 691, namely, whether the series of treaties
(D.C.Cir.1999) (the FSIA “is the sole basis for obtaining jurisdiction over a foreign Japan concluded in order to secure the peace after World War II foreclosed the
state in our courts”)-before considering whether the complaint presents a appellants' claims. As we explained in our previous opinion, Article 14 of the 1951
nonjusticiable political question, see Ruhrgas, 526 U.S. at 585, 119 S.Ct. 1563 (“It Treaty of Peace between Japan and the Allied Powers, 3 U.S.T. 3169, “expressly
is hardly novel for a federal court to choose among threshold grounds for denying waives ․ ‘all claims of the Allied Powers and their nationals arising out of any actions
audience to a case on the merits”). taken by Japan and its nationals in the course of the prosecution of the war.’ ” 332
F.3d at 685.
B. The Political Question Doctrine
The appellants from China, Taiwan, and South Korea argue that because their
The War in the Pacific has been over for 60 years, and Japan has long since governments were not parties to the 1951 Treaty, the waiver of claims provision in
signed a peace treaty with each of the countries from which the appellants come. Article 14 did not extinguish their claims. Neither, they argue, did the subsequent
The appellants maintain those treaties preserved, and Japan maintains they agreements between Japan and the governments of their countries. Although the
extinguished, war claims made by citizens of those countries against Japan. As appellants acknowledge that “it may seem anomalous that aliens may sue where
explained below, our Constitution does not vest the authority to resolve that dispute similar claims of U.S. nationals are waived,” they argue “that is precisely the result
in the courts. Rather, we defer to the judgment of the Executive Branch of the contemplated by ․ the [Alien Tort Statute], 28 U.S.C. § 1350.” *
United States Government, which represents, in a thorough and persuasive
Statement of Interest, that judicial intrusion into the relations between Japan and “Anomalous” is an understatement. See Statement of Interest of the United States
other foreign governments would impinge upon the ability of the President to at 28 (“it manifestly was not the intent of the President and Congress to preclude
conduct the foreign relations of the United States. 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-
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), remains the U.S. nationals”). Even if we assume, however, as the appellants contend, that the
starting point for analysis under the political question doctrine. There the Supreme 1951 Treaty does not of its own force deprive the courts of the United States of
Court explained that “[p]rominent on the surface of any case held to involve a jurisdiction over their claims, it is pellucidly clear the Allied Powers intended that all
political question is found” at least one of six factors, the first of which is “a war-related claims against Japan be resolved through government-to-government
textually demonstrable constitutional commitment of the issue to a coordinate negotiations rather than through private tort suits. Indeed, Article 26 of the Treaty
political department ․” Id. at 217, 82 S.Ct. 691.* Of course, questions concerning obligated Japan to enter “bilateral” peace treaties with non-Allied states “on the
foreign relations “frequently ․ involve the exercise of a discretion demonstrably same or substantially the same terms as are provided for in the present treaty,”
committed to the executive or legislature”;  the Court cautioned, however, that “it is which indicates the Allied Powers expected Japan to resolve other states' claims, like
error to suppose that every case or controversy which touches foreign relations lies their own, through government-to-government agreement. To the extent the
beyond judicial cognizance.” Id. at 211, 82 S.Ct. 691. Courts are therefore to subsequent treaties between Japan and the governments of the appellants'
focus their analysis upon “the particular question posed, in terms of the history of countries resolved the claims of their respective nationals, the 1951 Treaty at a
its management by the political branches.” Id. minimum obliges the courts of the United States not to disregard those bilateral
resolutions.
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 First, the Republic of the Philippines, as an Allied Power, was a signatory to the
the political branches” may be appropriate in cases brought under the Alien Tort 1951 Treaty itself and thus at least purported to waive the claims of its nationals.
Statute. Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 2766 n. 21, 159 136 U.N.T.S. at 137, ratified 260 U.N.T.S. 450. Then in 1952 Japan reached an
L.Ed.2d 718 (2004). In Sosa, the Court took note of certain class actions seeking agreement with the Republic of China (Taiwan), 138 U.N.T.S. 37, which did not
damages for those injured by “the regime of apartheid that formerly controlled expressly mention the settlement of individual claims but did state in Article XI that
South Africa”;  in each case the United States had filed a Statement of Interest “[u]nless otherwise provided for in the present Treaty ․ any problem arising
counseling dismissal because prosecution of the case would interfere with South between [the parties] as a result of the existence of a state of war shall be settled
Africa's policy of “deliberately avoid[ing] a ‘victors' justice’ approach to the crimes of in accordance with the relevant provisions of the [1951] Treaty.” In 1965 Japan
apartheid” in favor of “confession and absolution ․ reconciliation, reconstruction, and the Republic of Korea (South Korea) entered into an agreement providing that
reparation and goodwill.” Id. “In such cases,” the Court explained, “there is a “the problem concerning property, rights, and interests of the two Contracting
strong argument that federal courts should give serious weight to the Executive Parties and their nationals ․ and concerning claims between the Contracting Parties
Branch's view of the case's impact on foreign policy.” Id. Similarly, the Court in and their nationals ․ is settled completely and finally.” 583 U.N.T.S. 258, 260 (Art.
Altmann noted that a Statement of Interest concerning “the implications of II, § 1). Finally, in 1972 Japan and the People's Republic of China issued a Joint
exercising jurisdiction over [a] particular [foreign government] in connection with Communiqué in which China “renounce[d] its demand for war reparation from
[its] alleged conduct ․ might well be entitled to deference as the considered Japan,” and in 1978 Japan and China affirmed in a formal treaty of peace that “the
judgment of the Executive on a particular question of foreign policy.” 541 U.S. at 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, 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
governments have dealt with ․ private claims as their own, treating them as one that concerns the United States only with respect to her foreign relations, the
national assets, and as counters, ‘chips', in international bargaining. Settlement authority for which is demonstrably committed by our Constitution not to the courts
agreements have lumped, or linked, claims deriving from private debts with others but to the political branches, with “the President [having] the ‘lead role.’ ”
that were intergovernmental in origin, and concessions in regard to one category of Garamendi, 539 U.S. at 423 n. 12, 123 S.Ct. 2374. And with respect to that
claims might be set off against concessions in the other, or against larger political question, the history of management by the political branches, Baker, 369 U.S. at
considerations unrelated to debts. 211, 82 S.Ct. 691, 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
Louis Henkin, Foreign Affairs and the Constitution 300 (2d edition 1996);  see peace with Japan as possible by closing the door on the litigation of war-related
Dames and Moore v. Regan, 453 U.S. 654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 claims, and instead effecting the resolution of those claims through political means.”
(1981) (upholding President's authority to settle claims of citizens as “a necessary Statement of Interest at 29;  see also S.Rep. No. 82-2, 82d Cong., 2d Sess. 12
incident to the resolution of a major foreign policy dispute between our country and (1952) (“Obviously insistence upon the payment of reparations in any proportion
another [at least] where ․ Congress acquiesced in the President's action”);  Am. Ins. commensurate with the claims of the injured countries and their nationals would
Ass'n v. Garamendi, 539 U.S. 396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) wreck Japan's economy, dissipate any credit that it may possess at present, destroy
(acknowledging “President's authority to provide for settling claims in winding up the initiative of its people, and create misery and chaos in which the seeds of
international hostilities”). 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
The governments of the appellants' countries apparently had the authority-at least Department's recommendation to dismiss private claim as barred by 1951 Treaty);
the appellants do not contest the point-to bargain away their private claims in  In re World War II Era Japanese Forced Labor Litigation, 114 F.Supp.2d 939, 946-
negotiating a peace with Japan and, as we noted previously, it appears “in fact 48 (N.D.Cal.2000) (same).
[they] did.” 332 F.3d at 685. Indeed, Professor Henkin reports that “except as an
agreement might provide otherwise, international claim settlements generally wipe It is of course true, as the appellants point out, that in general “the courts have
out the underlying private debt, terminating any recourse under domestic law as the authority to construe treaties and executive agreements,” Japan Whaling Ass'n
well.” Above at 300. The Supreme Court first expressed the same understanding v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986);
with respect to the Treaty of Paris ending the War of Independence, which expressly  see also Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1235-36 (11th
provided for the preservation of private claims. In Ware v. Hylton, 3 U.S. (3 Dall.) Cir.2004). At the same time, the Executive's interpretation of a treaty is ordinarily
199, 230, 1 L.Ed. 568 (1796), a case brought by a British subject to recover a debt entitled to “great weight,” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote: 184-85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982).

I apprehend that the treaty of peace abolishes the subject of the war, and that after Here, however, the United States is not a party to the treaties the meaning of which
peace is concluded, neither the matter in dispute, nor the conduct of either party, is in dispute, and the Executive does not urge us to adopt a particular interpretation
during the war, can ever be revived, or brought into contest again. All violencies, of those treaties. Rather, the Executive has persuasively demonstrated that
injuries, or damages sustained by the government, or people of either, during the adjudication by a domestic court not only “would undo” a settled foreign policy of
war, are buried in oblivion;  and all those things are implied by the very treaty of state-to-state negotiation with Japan, but also could disrupt Japan's “delicate”
peace;  and therefore not necessary to be expressed. Hence it follows, that the relations with China and Korea, thereby creating “serious implications for stability in
restitution of, or compensation for, British property confiscated, or extinguished, the region.” Statement of Interest at 34-35. Consider:  According to the
during the war, by any of the United States, could only be provided for by the treaty appellants the Republic of Korea does not agree with Japan's understanding that the
of peace;  and if there had been no provision, respecting these subjects, in the treaty between them extinguished the appellants' claims against Japan. See Reply
treaty, they could not be agitated after the treaty, by the British government, much Brief of Appellants at 15 n. 14 (quoting Korean Foreign Minister as saying that “it is
less by her subjects in courts of justice. (Emphasis supplied). 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.'
Contrary to that principle, the appellants insist the treaties between Japan and Opp. Mot. Dismiss. Ex. 2 at 12). Is it the province of a court in the United States
Taiwan, South Korea, and China preserved the claims of individuals by failing to to decide whether Korea's or Japan's reading of the treaty between them is correct,
mention them (a claim that would be untenable with respect to the Philippines). when the Executive has determined that choosing between the interests of two
Japan does not agree, nor does the Department of State, which takes the position foreign states in order to adjudicate a private claim against one of them would
that “[t]he plaintiffs' governments ․ chose to resolve those claims through adversely affect the foreign relations of the United States? Decidedly not. The
international agreements with Japan.” Statement of Interest at 31. In order to Executive's judgment that adjudication by a domestic court would be inimical to the
adjudicate the plaintiffs' claims, the court would have to resolve their dispute with foreign policy interests of the United States is compelling and renders this case
Japan over the meaning of the treaties between Japan and Taiwan, South Korea, nonjusticiable under the political question doctrine.
and China, which, as the State Department notes in arguing this case is
nonjusticiable, would require the court to determine “the effects of those III. Conclusion
agreements on the rights of their citizens with respect to events occurring outside
the United States.” Id.
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, 124 S.Ct. 2240;  Cf. Alperin v. Vatican Bank, 410 F.3d 532 (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.

FOOTNOTES

FOOTNOTE.  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.

FOOTNOTE.  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”).

GINSBURG, Chief Judge.


VINUYA VS. SEC. ROMULO discretionary authority has been delegated to the legislative or executive branch of
the government. It is concerned with issues dependent upon the wisdom, not
G.R. No. 162230, April 28, 2010 legality of a particular measure.”

FACTS: One type of case of political questions involves questions of foreign relations. It is
well-established that “the conduct of the foreign relations of our government is
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an committed by the Constitution to the executive and legislative–‘the political’–
application for the issuance of a writ of preliminary mandatory injunction against the departments of the government, and the propriety of what may be done in the
Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the exercise of this political power is not subject to judicial inquiry or decision.” are
DOJ, and the OSG. delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit advance or imperil.
organization registered with the SEC, established for the purpose of providing aid to
the victims of rape by Japanese military forces in the Philippines during the Second But not all cases implicating foreign relations present political questions, and courts
World War. certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should
Petitioners claim that since 1998, they have approached the Executive Department espouse claims of its nationals against a foreign government is a foreign relations
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the matter, the authority for which is demonstrably committed by our Constitution not
Japanese officials and military officers who ordered the establishment of the to the courts but to the political branches. In this case, the Executive Department
“comfort women” stations in the Philippines. But officials of the Executive has already decided that it is to the best interest of the country to waive all claims
Department declined to assist the petitioners, and took the position that the of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
individual claims of the comfort women for compensation had already been fully wisdom of such decision is not for the courts to question.
satisfied by Japan’s compliance with the Peace Treaty between the Philippines and
Japan. The President, not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of war. He has
Hence, this petition where petitioners pray for this court to (a) declare that his confidential sources of information. He has his agents in the form of diplomatic,
respondents committed grave abuse of discretion amounting to lack or excess of consular and other officials.
discretion in refusing to espouse their claims for the crimes against humanity and
war crimes committed against them; and (b) compel the respondents to espouse The Executive Department has determined that taking up petitioners’ cause would
their claims for official apology and other forms of reparations against Japan before be inimical to our country’s foreign policy interests, and could disrupt our relations
the International Court of Justice (ICJ) and other international tribunals. with Japan, thereby creating serious implications for stability in this region. For the
to overturn the Executive Department’s determination would mean an assessment
Respondents maintain that all claims of the Philippines and its nationals relative to of the foreign policy judgments by a coordinate political branch to which authority to
the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral make that judgment has been constitutionally committed.
Reparations Agreement of 1956.
From a municipal law perspective, certiorari will not lie. As a general principle,
On January 15, 1997, the Asian Women’s Fund and the Philippine government where such an extraordinary length of time has lapsed between the treaty’s
signed a Memorandum of Understanding for medical and welfare support programs conclusion and our consideration – the Executive must be given ample discretion to
for former comfort women. Over the next five years, these were implemented by assess the foreign policy considerations of espousing a claim against Japan, from
the Department of Social Welfare and Development. the standpoint of both the interests of the petitioners and those of the Republic, and
decide on that basis if apologies are sufficient, and whether further steps are
ISSUE: appropriate or necessary.

WON the Executive Department committed grave abuse of discretion in not In the international sphere, traditionally, the only means available for individuals to
espousing petitioners’ claims for official apology and other forms of reparations bring a claim within the international legal system has been when the individual is
against Japan. able to persuade a government to bring a claim on the individual’s behalf. By taking
up the case of one of its subjects and by resorting to diplomatic action or
RULING: international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international
Petition lacks merit. From a Domestic Law Perspective, the Executive Department law.
has the exclusive prerogative to determine whether to espouse petitioners’ claims
against Japan. Within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own
Political questions refer “to those questions which, under the Constitution, are to be right that the State is asserting. Should the natural or legal person on whose behalf
decided by the people in their sovereign capacity, or in regard to which full it is acting consider that their rights are not adequately protected, they have no
remedy in international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position
internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Petitioners have not shown that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the community
of states as a whole. Essential distinction should be drawn between the obligations
of a State towards the international community as a whole, and those arising vis-à-
vis another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.

The term “jus cogens” (literally, “compelling law”) refers to norms that command
peremptory authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of
equivalent authority

WHEREFORE, the Petition is hereby DISMISSED.


MOVSESIAN v. VICTORIA VERSICHERUNG AG the Ottoman Empire were victims of massacre, torture, starvation, death marches,
and exile. This period is known as the Armenian Genocide.
THOMPSON, Senior Circuit Judge:
Sen. Bill No.1915 at § 1.
Section 354.4 of the California Code of Civil Procedure extends the statute of
limitations until 2010 for claims arising out of life insurance policies issued to Section 354.4 was modeled after §§ 354.5 and 354.6, which extended the statute of
"Armenian Genocide victim[s]." Cal.Civ.Proc.Code § 354.4(c) (West 2006). The limitations until 2010 for Holocaust-era insurance claims and World War II slave
primary issue in this appeal is whether § 354.4 interferes with the national labor claims, respectively. Sen. Jud. Com., analysis of Sen. Bill No. 1915 (1999-
government's conduct of foreign relations. We conclude that it does, and 2000 Reg. Sess.) May 9, 2000, pp. 2, 4. Both of these sister statutes have been
accordingly, we hold that the California statute is preempted. The district court's found unconstitutional, because they interfered with the national government's
order denying the Rule 12(b)(6) motion to dismiss is reversed. foreign affairs power. Deustch v. Turner, 324 F.3d 692, 716 (9th Cir.2003) (finding
§ 354.6 unconstitutional); Steinberg v. Int. Comm. on Holocaust Era Ins.
Claims, 133 Cal.App.4th 689, 34 Cal.Rptr.3d 944, 953 (2005) (finding § 354.5
I. Background
unconstitutional).

In 2000, the California Legislature enacted Senate Bill 1915, which amended
In December 2003, Vazken Movsesian ("Movsesian") filed this class action against
California's Code of Civil Procedure to provide California courts with jurisdiction over
Victoria Verisherung AG ("Victoria"), Ergo Verischerungsgruppe AG ("Ergo"), and
certain classes of claims arising out of insurance policies that were held by
Munchener Ruckverischerungs-Gesellschaft Aktiengesellschaft ("Munich Re").
"Armenian Genocide vitcim[s]." Sen. Bill No. 1915 (1999-2000 Reg. Sess.), 2000
Movsesian and his fellow class members are persons of Armenian descent who claim
Cal. Legis. Serv. 543 (West 2000), codified at Cal.Civ.Proc.Code § 354.4. The Bill
benefits from insurance policies issued by Victoria and Ergo. Munich Re is the parent
also amended the Code to extend the statute of limitations for such claims until
company of Victoria and Ergo. Movsesian seeks damages from all three companies
December 31, 2010. Id. Section 354.4, in its entirety, provides:
for breach of written contract, breach of the covenant of good faith and fair dealing,
unjust enrichment, and other related claims. Munich Re filed a Rule 12(b)(6) motion
(a) The following definitions govern the construction of this section:(1) Armenian to dismiss the claims, arguing that the class members lacked standing to bring
Genocide victim means any person of Armenian or other ancestry living in the claims under § 354.4, and contending that it was not a proper defendant under §
Ottoman Empire during the period of 1915 to 1923, inclusive, who died, was 354.4. Munich Re also challenged the constitutionality of § 354.4, on the grounds
deported, or escaped to avoid persecution during that period.(2) Insurer means an that it violated the due process clause of the United States Constitution and was
insurance provider doing business in the state, or whose contacts in the state satisfy preempted under the foreign affairs doctrine.
the constitutional requirements for jurisdiction, that sold life, property, liability,
health, annuities, dowry, educational, casualty, or any other insurance covering
The district court granted Munich Re's motion to dismiss the claims for unjust
persons or property to persons in Europe or Asia at any time between 1875 and
enrichment and constructive trust, and denied Munich Re's motion to dismiss the
1923.(b) Notwithstanding any other provision of law, any Armenian Genocide
claims for breach of contract and breach of the covenant of fair dealing. The court
victim, or heir or beneficiary of an Armenian Genocide victim, who resides in this
held that the class members had standing to bring their claims, and that Munich Re
state and has a claim arising out of an insurance policy or policies purchased or in
was a proper defendant under § 354.4. The court rejected Munich Re's due process
effect in Europe or Asia between 1875 and 1923 from an insurer described in
challenge, and held that § 354.4 was not preempted under the foreign affairs
paragraph (2) of subdivision (a), may bring a legal action or may continue a
doctrine.
pending legal action to recover on that claim in any court of competent jurisdiction
in this state, which court shall be deemed the proper forum for that action until its
completion or resolution.(c) Any action, including any pending action brought by an Munich Re filed a motion to certify the district court's order for interlocutory appeal,
Armenian Genocide victim or the heir or beneficiary of an Armenian Genocide and to stay the action pending appeal. The district court granted the motion, and
victim, whether a resident or nonresident of this state, seeking benefits under the stayed the case. Within the ten-day window provided by 28 U.S.C. § 1292(b),
insurance policies issued or in effect between 1875 and 1923 shall not be dismissed Munich Re petitioned this court for permission to pursue an interlocutory appeal,
for failure to comply with the applicable statute of limitation, provided the action is which we granted.
filed on or before December 31, 2010.(d) The provisions of this section are
severable. If any provision of this section or its application is held invalid, that
On appeal, the parties address three issues: first, whether § 354.4 is preempted
invalidity shall not affect other provisions or applications that can be given effect
under the foreign affairs doctrine; second, whether Munich Re is a proper
without the invalid provision or application.
defendant; and third, whether the Plaintiff-Appellees have standing to bring these
claims.1 We conclude that § 354.4 impermissibly infringes on the federal
In the legislative findings accompanying the statute, the Legislature provides formal government's foreign affairs power, and is preempted. We do not reach the other
recognition to an "Armenian Genocide": issues.

The Legislature recognizes that during the period from 1915 to 1923, many persons On December 4, 2008, our court received a letter from the Turkish Ambassador via
of Armenian ancestry residing in the historic Armenian homeland then situated in facsimile. Letter from Nabi Sensoy, the Turkish Republic's Ambassador to the United
States, to Molly Dwyer, Clerk of the United States Court of Appeals for the Ninth (1937). In Garamendi, the Supreme Court recognized for the first time that
Circuit (December 4, 2008). The letter expresses Turkey's opposition to § 354.4, "presidential foreign policy" itself may carry the same preemptive force as a federal
and urges the court to overturn the California statute. At oral argument, Munich Re statute or treaty. Am. Ins. Assoc. v. Garamendi, 539 U.S. 396, 421, 123 S.Ct.
asked us to take judicial notice of the letter; Movsesian objected. 2374, 156 L.Ed.2d 376 (2003). Unlike in previous cases, the presidential foreign
policy was not contained in a single executive agreement. Instead, the policy was
"embod[ied]" in several executive agreements, as well as in various letters and
We decline to take judicial notice of the letter, because the letter was submitted
statements from executive branch officials at congressional hearings. Id. at 421-23,
after—and apparently in response to—the district court's decision. See, e.g., Ctr. for
123 S.Ct. 2374. In sum, the Court held that in the realm of foreign affairs, "[t]he
Bio-Ethical Reform, Inc. v. City and County of Honolulu, 455 F.3d 910, 918 n. 3
exercise of the federal executive authority means that state law must give way
(2006) (declining to take judicial notice of documents issued after the district court's
where ... there is evidence of clear conflict between the policies adopted by the
decision). Even if we did take notice of the letter, however, it would not alter our
two." Id.
decision in this case.

To determine whether California's Holocaust Victims Insurance Relief Act (HVIRA)


II. Standard of Review
was preempted by presidential foreign policy, the Garamendi Court employed a
traditional conflict preemption analysis. Id. at 420-27, 123 S.Ct. 2374. First, the
Appellate jurisdiction under § 1292(b) "applies to the order certified to the court of Court considered whether there was an "express federal policy" on point. Id. at 420-
appeals, and is not tied to the particular question formulated by the district 25, 123 S.Ct. 2374. Next, the Court analyzed whether the California statutory
court." Yamaha Motor Corp., USA v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, scheme posed a "clear conflict." Id. at 425-27, 123 S.Ct. 2374. Here, just as
133 L.Ed.2d 578 (1996). We have jurisdiction to decide all questions "fairly raised" in Garamendi, the "question relevant to preemption in this case is conflict." And just
by the issue under review. Lee v. Am. Nat. Ins. Co., 260 F.3d 997, 1000-01 (9th as in Garamendi, "the evidence here is more than sufficient to demonstrate that the
Cir.2001). We will not address issues outside the order appealed from, or issues not state Act stands in the way of [the President's] diplomatic objectives." Id. at 427,
yet considered by the district court. Life Ins. Co. v. Reichardt, 591 F.2d 499, 505-06 123 S.Ct. 2374(citing Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 386, 120
(9th Cir.1979). S.Ct. 2288, 147 L.Ed.2d 352 (2000)).

We review de novo a district court's grant of a Rule 12(b)(6) motion to 1. Express Federal Policy
dismiss. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir.2004). All well-
pleaded factual allegations are to be construed in the light most favorable to the
Munich Re contends that presidential foreign policy prohibits legislative recognition
pleader, and accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
of an "Armenian Genocide," and that this policy preempts § 354.4. In support of
S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); Johnson v. Riverside Healthcare
this argument, Munich Re points to several failed House Resolutions, H.R. Res. 106,
System, 534 F.3d 1116, 1122 (9th Cir.2008). Ultimately, "when the allegations in a
110th Congress (2007); H.R. Res. 193, 108th Congress (2003); H.R. Res. 596,
complaint, however true, could not raise a claim of entitlement to relief, this basic
106th Congress (2000). Each of these resolutions formally recognized the
deficiency should... be exposed at the point of minimum expenditure of time and
"Armenian Genocide." Each time, the Administrations of President Bush and
money by the parties and the court." Twombly, 127 S.Ct. at 1966(internal quotation
President Clinton took specific action, privately and publicly, to defeat these
marks omitted).
measures.

III. The Constitutionality of § 354.4 Under the Foreign


a. House Resolution 596
Affairs Doctrine

House Resolution 596, entitled "Affirmation of the United States Record on the
This case presents the issue whether § 354.4 of the California Code of Civil
Armenian Genocide Resolution," "[c]all[ed] upon the President to ensure that the
Procedure interferes with the national government's power to conduct foreign
foreign policy of the United States reflects appropriate understanding and sensitivity
affairs. Munich Re contends that § 354.4 is preempted under the foreign affairs
concerning issues related to human rights, ethnic cleansing, and genocide
doctrine in two ways: first, that it is preempted by the Claims Agreement of 1922,
documented in the United States record relating to the Armenian Genocide, and for
and the War Claims Act of 1928; and second, that it conflicts with the Executive
other purposes." H.R. Res. 596, 106th Cong. (2000). In support of the Resolution,
Branch's policy prohibiting legislative recognition of an "Armenian Genocide." We
the House passed a number of legislative findings, including the following:
conclude that § 354.4 conflicts with Executive Branch foreign policy, and thus, is
preempted. We need not decide the questions whether § 354.4 is preempted by the
Claims Agreement or the War Claims Act. The Armenian Genocide was conceived and carried out by the Ottoman Empire from
1915 to 1923, resulting in the deportation of nearly 2,000,000 Armenians, of whom
1,500,000 men, women, and children were killed, 500,000 survivors were expelled
The Supreme Court has long recognized that the Executive Branch's foreign policy
from their homes, and which succeeded in the elimination of the over 2,500-year
preferences are entitled to preemptive weight when they take the form of executive
presence of Armenians in their historic homeland.
agreements. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69
L.Ed.2d 918 (1981); United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed.
796 (1941); United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134
Id. at § 2(1). In all, the Resolution uses the phrase "Armenian Genocide" at least H.R.Rep. No. 108-130, at 5-6 (2003). The Bush Administration echoed the Clinton
twenty-four times. Administration's belief that "legislation on the issue is counterproductive." Id. at 6.
This time, the Resolution was reported out of committee and calendared, but was
never actually brought to a vote on the floor.
President Clinton personally expressed his opposition to the Resolution in a letter to
Speaker Hastert. Letter to the Speaker of the House of Representatives on a
Resolution on Armenian Genocide, 3 Pub. Papers 2225-26 (Oct. 19, 2000). The c. House Resolution 106
President explained the potential negative impact the Resolution would have on the
nation's foreign policy interests:
In 2007, the House entertained yet another resolution that would provide official
recognition to an "Armenian Genocide." House Resolution 106 was nearly
[I] am deeply concerned that consideration of H. Res. 596 at this time could have indistinguishable from House Resolution 596, discussed above. The Bush
far-reaching negative consequences for the United States. We have significant Administration renewed its opposition to legislative recognition of an "Armenian
interests in this troubled region of the world: containing the threat posed by Genocide" through a joint letter from Secretary of State Condoleezza Rice and
Saddam Hussein; working for peace and stability in the Middle East and Central Secretary of Defense Robert Gates to Speaker Nancy Pelosi. Letter from
Asia; stabilizing the Balkans; and developing new sources of energy. Consideration Condoleezza Rice, Sec'y of State, and Robert M. Gates, Sec'y of Defense, to Nancy
of the resolution at this sensitive time will not only negatively affect those interests, M. Pelosi, Speaker of the House of Representatives (March 7, 2001). The
but could undermine efforts to encourage improved relations between Armenia and Secretaries sent an identical letter to the Minority Leader of the House,
Turkey—the very goal the Resolution's sponsors seek to advance. Representative John Boehner. Letter from Condoleezza Rice, Sec'y of State, and
Robert M. Gates, Sec'y of Defense, to John A. Boehner, Minority Leader of the
House of Representatives (March 7, 2001).
Id. In sum, President Clinton urged the Speaker "in the strongest terms not to bring
this Resolution to the floor at this time." Id.
In their joint letter, the Secretaries underscored the importance of Turkey's
contributions to the war in Iraq. See Letter from Condoleezza Rice and Robert Gates
In addition, several senior-level Administration officials sent letters to the Chairman
to Nancy Pelosi, supra, at 2. The Secretaries noted that when the French Assembly
of the Committee on International Relations, reiterating the Administration's
voted in favor of a similar bill, the Turkish military cut off contact with the French
opposition to the Resolution. H.R.Rep. No. 106-933, at 16-19 (2000). The Assistant
military and terminated defense contracts under negotiation. Id. The Secretaries
Secretary of State expressed the Administration's belief that "legislative measures"
warned that "[a] similar reaction by the Government of Turkey to a House
were not the appropriate means of addressing the "sensitive issue" raised in the
resolution could harm American troops in the field, constrain our ability to supply
Resolution. Id. at 17. The Secretary of Defense and the Undersecretary of Defense
our troops in Iraq and Afghanistan, and significantly damage our efforts to promote
underscored the Administration's concern that the Resolution "would complicate our
reconciliation between Armenia and Turkey[.]" Id. In conclusion, the Secretaries
efforts to build relationships and protect our interests in the region and sustain our
"strongly urge[d] [the Speaker] to refrain from allowing the resolution to reach the
positive relationship with a key, strategically placed ally." Id. at 16-18. The
House floor." Id.
Resolution was reported out of committee, but never brought to a vote on the floor.

Despite the Secretaries' exhortations, the House Committee on Foreign Affairs


b. House Resolution 193
passed a motion to order the bill reported. H.R. Res. 106, 110th Cong. (as reported
by H. Comm. on Foreign Aff., Oct. 10, 2007). In response, President Bush made the
In 2003, a general resolution "reaffirming support of the Convention on the following statement:
Prevention and Punishment of the Crime of Genocide" was introduced in the House.
H.R. Res. 193, 108th Cong. (2003). Unlike the other two resolutions discussed in
On another issue before Congress, I urge members to oppose the Armenian
this section, House Resolution 193 did not contain any legislative findings, or even
genocide resolution now being considered by the House Foreign Affairs Committee.
any reference to Turkey or the Ottoman Empire. Nevertheless, the Bush
We all deeply regret the tragic suffering of the Armenian people that began in 1915.
Administration strongly opposed it. The Administration's opposition to House
This resolution is not the right response to these historic mass killings, and its
Resolution 193 was based solely on two words found in the resolution: "Armenian
passage would do great harm to our relations with a key ally in NATO and in the
Genocide." An official from the State Department explained:
global war on terror.

I am writing to express the Administration's opposition to the wording of H. Res.


Press Release, White House Office of the Press Secretary, President Bush Discusses
193 of April 10, 2003 .... [W]e oppose HR 193's reference to the Armenian
Foreign Intelligence Surveillance Act Legislation (Oct. 10, 2007).
Genocide. Were this wording adopted it could complicate our efforts to bring peace
and stability to the Caucasus and hamper ongoing attempts to bring about Turkish-
Armenian reconciliation. We continue to believe that fostering a productive dialogue Following President Bush's statements, no further action was taken on the
on these events is the best way for Turkey and Armenia to build a positive and Resolution.
productive relationship. Declarations such as this one, however, hinder rather than
encourage the process.
d. Emergence of the Express Policy publicly, to implement the policy. Each time, Congress deferred to the President's
authority, and did not bring the Resolution to a vote. Under
the Youngstown framework, this congressional acquiescence infuses the President's
The foregoing account of negotiations between the Executive Branch and Congress,
authority to act with additional support. See Medellín, 128 S.Ct. at
and the public statements and letters of two Presidents, clearly establish a
1368; Youngstown, 343 U.S. at 637.
presidential foreign policy preference against providing legislative recognition to an
"Armenian Genocide." The Garamendi Court relied on similar communications
between the Administration and state legislative and executive officials, in addition In sum, we conclude there is an express federal policy prohibiting legislative
to several executive agreements, in finding that HVIRA was recognition of an "Armenian Genocide," as embodied in the previously mentioned
preempted. Garamendi, 539 U.S. at 408-11, 123 S.Ct. 2374. statements and letters of the President and other high-ranking Executive Branch
officials. This policy is a valid exercise of the President's Article II powers. In light of
this, and in light of Congress's deference to the Executive Branch on this matter,
Unlike the presidential foreign policy at issue in Garamendi, the presidential foreign
the policy is entitled to preemptive weight.
policy in the present case is not embodied in any executive agreement. This does
not, however, detract from the policy's preemptive force. The executive agreements
discussed in Garamendi did not apply to all of the claims at issue, so they could not 2. Clear Conflict
have been central to the Court's finding of preemption in that case. Id. at 417, 123
S.Ct. 2374.
We next consider whether § 354.4 clearly conflicts with the presidential foreign
policy prohibiting legislative recognition of an Armenian Genocide. We conclude that
Furthermore, the preemptive power of the federal policy is not derived from the it does. The conflict is clear on the face of the statute: by using the phrase
form of the policy, but rather from the source of the executive branch's authority to "Armenian Genocide," California has defied the President's foreign policy
act. Presidential foreign policy only carries preemptive weight when the executive preferences.
authority is validly exercised—as measured by the tripartite framework set forth by
Justice Jackson in Youngstown. Medellín v. Texas, ___ U.S. ___, 128 S.Ct. 1346,
The language of the California statute is very similar to that of the failed House
136972, 170 L.Ed.2d 190 (2008) (citing Youngstown Sheet & Tube Co. v.
Resolutions. The California Legislature made the following findings in support of §
Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J.,
354.4:
concurring)). In prior cases where the presidential policy at issue implicated criminal
law (an area traditionally left to the states to regulate), or foreign commerce (an
area delegated by the Constitution to Congress), the Court has refused to accord The Legislature recognizes that during the period from 1915 to 1923, many persons
the policy preemptive effect. See, e.g., Medellín, 128 S.Ct. at 1369-72; Barclays of Armenian ancestry residing in the historic Armenian homeland then situated in
Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329-30, 114 S.Ct. 2268, 129 the Ottoman Empire were victims of massacre, torture, starvation, death marches,
L.Ed.2d 244 (1994). Here, however, the presidential policy concerns national and exile. This period is known as the Armenian Genocide.
security, a war in progress, and diplomatic relations with a foreign nation. The
Constitution squarely, if not solely, vests these powers with the Executive Branch. This language closely parallels the legislative findings in House Resolutions 596 and
U.S. Const. art. II, § 2, cl. 1; id. at § 2, cl. 2; id. at § 3; see also Medellín, 128 S.Ct. 106, which the Executive Branch vehemently opposed. Section 354.4 implicates the
at 1367 (holding that the President has the "lead role" in making "sensitive foreign same concerns raised by the Executive Branch in response to these resolutions.
policy decisions"); Garamendi, 539 U.S. at 414, 123 S.Ct. 2374; Deutsch,324 F.3d
at 708-09 (enumerating the foreign affairs powers delegated by the Constitution to
the President). Movsesian contends that given § 354.4's severability provision, the constitutionality
of § 354.4(c) should be analyzed distinctly. Even assuming subsection (c) could be
separated from the constitutional deficiencies underlying the rest of the statute, the
The President acts well within his constitutionally delegated powers by developing subsection would still conflict with the federal policy at issue. Section 354.4(c)
and enforcing the policy refusing to provide official recognition to an "Armenian contains two references to the "Armenian Genocide." As discussed above, the
Genocide." Accordingly, the presidential policy is entitled to preemptive effect. See, Executive Branch opposed House Resolution 193 simply because it contained the
e.g., Medellín, 128 S.Ct. at 1367 n. 13, 1367-71 (suggesting that the President, in phrase "Armenian Genocide." The heart of § 354.4's conflict with the presidential
the exercise of his Article II powers, could take action which preempts conflicting foreign policy lies in these two words. By choosing to use the words "Armenian
state law, but refusing to find such preemption in that case); cf. Barclays Bank Genocide," § 354.4 directly contradicts the President's express foreign policy
PLC, 512 U.S. at 330, 114 S.Ct. 2268 ("Executive Branch communications that preference.
express federal policy but lack the force of law cannot render unconstitutional
California's otherwise valid, congressionally condoned, use of worldwide combined
reporting."). Movsesian ridicules the idea that two words could have such a "talismanic" effect.
The symbolic effect of the words, however, is precisely the problem. The federal
government has made a conscious decision not to apply the politically charged label
Even if the policy implicated a power shared by the President and Congress, of "genocide" to the deaths of these Armenians during World War I. Whether or not
Congress's documented deference in this case lends the presidential policy California agrees with this decision, it may not contradict it. See Garamendi, 539
additional authority. See Medellín, 128 S.Ct. at 1368; Youngstown, 343 U.S. at 637, U.S. at 427, 123 S.Ct. 2374. When it comes to dealings with foreign nations, "state
72 S.Ct. 863. The President and his senior officials lobbied Congress, privately and
lines disappear." Belmont, 301 U.S. at 331, 57 S.Ct. 758. California may not assert disputes relating to the war." Deutsch, 324 F.3d at 714. Though the instant case
a "distinct juristic personality." Pink, 315 U.S. at 230, 62 S.Ct. 552. does not concern war injuries and reparations, Deutsch's reasoning is still
applicable. The power to conduct diplomatic relations and negotiations, like the war
powers, is vested exclusively with the federal government. U.S. Const. 11434 art. I,
If § 354.4 provoked Turkey's ire, it is the nation as a whole—not just California —
§ 8; id. at art. II, § 3. Absent explicit authorization, states may not modify or alter
that would suffer. "If state action could defeat or alter our foreign policy, serious
the nation's foreign policy. Deutsch, 324 F.3d at 713-14.
consequences might ensue. The nation as a whole would be held to answer if a
State created difficulties with a foreign power." Pink, 315 U.S. at 232, 62 S.Ct. 552.
The Bush Administration warned that American recognition of an "Armenian In sum, § 354.4 conflicts with the Executive Branch's clearly expressed foreign
Genocide" could endanger America's alliance with Turkey, and thus, our troops on policy refusing to provide official legislative recognition to the "Armenian Genocide."
the ground in Iraq. See Letter from Condoleezza Rice and Robert Gates to Nancy The Executive Branch policy is entitled to preemptive weight, because the Executive
Pelosi, supra at 2. has the authority to make this policy, and Congress has deferred to the Executive's
will in this matter. Section 354.4 impermissibly impairs the President's ability to
speak with one voice for the nation in the realm of foreign affairs, and undermines
Section 354.4 also threatens to undermine the Executive Branch's diplomatic
his diplomatic authority.
relations with Turkey. States may not "compromise the very capability of the
President to speak for the nation with one voice in dealing with other
governments." Garamendi, 539 U.S. at 424, 123 S.Ct. 2374. Here, § 354.4 As in Garamendi, the express presidential foreign policy and the clear conflict raised
"undercuts the President's diplomatic discretion and the choice he has made in by § 354.4 are "alone enough to require state law to yield." Garamendi, 539 U.S. at
exercising it." Id. at 423-24, 123 S.Ct. 2374. 425, 123 S.Ct. 2374. The Garamendi Court, however, went on to consider the
strength of California's interest in enacting HVIRA, observing: "If any doubt about
the clarity of the conflict remained... it would have to be resolved in the National
In Garamendi and Crosby, the Court struck down state statutes which undermined
Government's favor, given the weakness of the State's interest." Id. Accordingly, we
the President's diplomatic discretion. Id.; Crosby v. Nat'l Foreign Trade Council, 530
will also address the strength of California's interest in enacting § 354.4.
U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). By providing explicit recognition
to the "Armenian Genocide," § 354.4 threatens to have the same deleterious effect.
The Executive Branch chose to address the issue through the medium of 3. California's Interest in § 354.4
presidential speeches, not legislation: "The President believes that the proper way
to address this issue and express our feelings about it is through the presidential
The district court erroneously held that § 354.4 was within the state's traditional
message and not through legislation.... What [President Bush] wants is for the
area of competence because it was a procedural rule extending the statute of
presidential message to be the thing that stands for the American response to this,
limitations and reviving previously barred claims. We explicitly rejected this
not legislation passed by the House of Representatives." See Press Release, White
reasoning in Deutsch. Deutsch,324 F.3d at 707 (repudiating Appellants' attempts to
House Office of the Press Secretary, Press Briefing by Dana Perino (Oct. 11, 2007).
"characterize Section 354.6 as a purely procedural measure"). Nor is the statute
California has done what Congress declined to do: it has defied the President's
saved by Movsesian's attempts to characterize § 354.4 as quotidian insurance
foreign policy preferences, and has undermined the President's diplomatic power.
regulation. See Garamendi, 539 U.S. at 425-26, 123 S.Ct. 2374 (rejecting
purported state interest in regulating insurance business and blue sky laws).
Finally, we must address the district court's conclusion that the presidential policy
prohibiting Congress from recognizing an "Armenian Genocide" does not apply to
Courts have consistently looked past "superficial" state interests to ascertain true
individual states. In support of this conclusion, the district court noted that thirty-
legislative intent. See, e.g., Garamendi, 539 U.S. at 425-26, 123 S.Ct. 2374
nine other states have passed legislation recognizing the "Armenian Genocide," and
(rejecting purported state interest in regulating insurance business and blue sky
neither the federal government nor Turkey expressed any opposition to these state
laws); Crosby, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (rejecting purported
statutes.
state interest in taxing and spending); Zschernig v. Miller, 389 U.S. 429, 437-38, 88
S.Ct. 664, 19 L.Ed.2d 683 (1968) (rejecting purported state interest in regulating
The district court's reasoning is not persuasive for several reasons. First, legislation descent of property); Deutsch, 324 F.3d at 707 (rejecting purported state interest
enacted by other states is irrelevant to the question of whether § 354.4 is in procedural rules).
preempted by presidential foreign policy. Furthermore, there is no citation or
evidence in the record of these other thirty-nine state statutes which purportedly
Here, as in Deutsch and Garamendi, California's "real desiderata" is to provide a
reference the "Armenian Genocide."
forum for the victims of the "Armenian Genocide" and their heirs to seek
justice. Garamendi, 539 U.S. at 425, 123 S.Ct. 2374; Deutsch, 324 F.3d at 707. By
Second, the fact that the federal government has not expressly prohibited states opening its doors as a forum to all "Armenian Genocide" victims and their heirs and
from using the phrase "Armenian Genocide" is not outcome-determinative. beneficiaries, California expresses its dissatisfaction with the federal government's
In Deutsch, this court rejected a similar argument, and refused to recognize a chosen foreign policy path. Garamendi and Deutsch clearly hold that this is not a
private cause of action for war injuries. Though the relevant treaties did not permissible state interest. Garamendi, 539 U.S. at 427, 123 S.Ct.
expressly prohibit such actions, the Deutschcourt held that "[w]ithout [explicit] 2374; Deutsch,324 F.3d at 712.
authorization, states lack the power to alter the federal government's resolution of
IV. Conclusion

California Code of Civil Procedure § 354.4 is preempted because it directly conflicts


with the Executive Branch's foreign policy refusing to provide official recognition to
the "Armenian Genocide." Far from concerning an area of traditional state interest,
§ 354.4 impinges upon the National Government's ability to conduct foreign affairs.
The district court's order denying the Rule 12(b)(6) motion to dismiss is REVERSED.
This cause is REMANDED to the district court for further proceedings consistent with
this opinion.

PREGERSON, Circuit Judge, dissenting:

The majority holds that California's attempt to regulate insurance does not fall
within the realm of traditional state interests. I disagree. The legislative findings
accompanying California Code of Civil Procedure § 354.4 recognize that thousands
of California residents and citizens have often been deprived of their entitlement to
benefits under certain insurance policies. S.1915, 1999-2000 Reg. Sess. (Cal.2000)
at § 1(b). "States have broad authority to regulate the insurance industry." Am. Ins.
Ass'n v. Garamendi, 539 U.S. 396, 434 n. 1, 123 S.Ct. 2374, 156 L.Ed.2d 376
(2003) (Ginsberg, J. dissenting) (citation omitted). California has not exceeded that
authority merely by "assigning special significance to an insurer's treatment arising
out of a[] [particular] era...." Id. California's interest in ensuring that its citizens are
fairly treated by insurance companies over which the State exercises jurisdiction is
hardly a superficial one.

The strength of this traditional state interest weighs against preemption in a case,
such as the case before us, where there is doubt about the clarity of the conflict
between state law and federal policy. Indeed, there is no conflict. I can find no
evidence of any express federal policy forbidding states from using the term
"Armenian Genocide." The majority accurately states that the "federal government
has made a conscious decision not to apply the politically charged label of
`genocide' to the deaths of [ ] Armenians during World War I." Maj. Op. at 1061.
Nowhere, however, does the majority point to any evidence of an express federal
policy barring states from so doing.

The majority's reliance on Deutsch v. Turner, 324 F.3d 692 (9th Cir.2003), is
misplaced. Whether California has, while acting within its authority to regulate the
insurance industry, intruded upon the province of the federal government has no
bearing on the existence of, or conflict with, an express federal policy applicable to
the states.

There is no express federal policy forbidding California from using the term
"Armenian Genocide" in the course of exercising its traditional authority to regulate
the insurance industry. Accordingly, I dissent. I would affirm the district court.

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