Curt Surls, Federal Circuit finds that Korean citizens lack standing to enforce U.S. agreement with Korea

Federal Circuit finds that Korean citizens lack standing to enforce U.S. agreement with Korea to compensate Korean veterans of Vietnam conflict and that case involves “political question”

In 1966, through a letter from the then-Ambassador to Korea, Winthrop B. Brown, to the Korean Minister of Foreign Affairs, the U.S. allegedly agreed to provide military and economic assistance to Korea, as well as compensation for death and disability for Korean casualties suffered in Vietnam. Pursuant to this commitment transmitted through Ambassador Brown, the U.S. allegedly paid death and disability payments to the Republic of Korea, through the Minister of National Defense, of $10.5 million. Two individuals, Kang Joo Kwan, as representative of Korean veterans of the Vietnam conflict, and Se Jeik Park, for 270 members of the Korean National Assembly, claim moneys due under that commitment. Their claims are seemingly based on Agent Orange exposure and late-developing illnesses.

The district court dismissed the Republic of Korea as a party, and found that the plaintiffs lacked standing to enforce the Brown commitment, and that their claims involve non-justiciable political questions. The plaintiffs appealed. The U.S. Court of Appeals for the Federal Circuit finds that Kwan and Park lack standing to enforce a government-to-government obligation, and that their claims encompass non-justiciable political questions.

First, the Court explains that “[w]hen the foundation document is an agreement between governments, non-governmental entities cannot ordinarily challenge either their interpretation or their implementation, in the absence of express authorization for such private action. ... ‘A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and give no redress.’” [Slip op. 5] Since the Brown Commitment was informal and not legislatively implemented, it cannot be judicially enforced.

In particular, the appellants argued that prior cases have determined that treaties can provide a right of action. The Court, however, points out that the cases referred to by the appellants did not involve the enforcement of a political promise. Instead, they dealt with a court’s jurisdiction over a foreign defendant in extradition proceedings, or the application of property and inheritance treaties.

Finally, appellants suggest that the Brown Commitment be read as a contract with the Korean plaintiffs as third party beneficiaries. The Court explains that “¼the appellants cite no authority, and we know of none, whereby an individual has been found entitled to judicial enforcement of a government-to-government agreement on the legal theory that they are third party beneficiaries of the agreement. The district court ruled that ‘the commitment by Ambassador Brown was made on behalf of the United States to the government of the Republic of Korea and not to the individuals¼.” [Slip op. 8-9].

The payment made to the Korean Ministry further shows that the Brown Commitment was intended to be a government-to-government agreement. Thus, the matter does not implicate fundamental liberty interests and personal rights.

Finally, the Court reviews the appellants’ standing. The determination of standing depends on whether Korea formally protested a violation of the individuals’ rights under the Brown Commitment. The Court notes that the appellants presented a letter from Korea to the U.S. State Department that raised the issue of additional compensation for Agent Orange injuries. The district court, however, did not consider this letter an “official protest.”

Compliance with the Brown Commitment is therefore a matter of foreign policy and foreign relations, and not a matter for the courts to decide.

Citation: Kwan v. U.S., 272 F.3d 1360 (Fed. Cir. 2001).

Curt Surls, In case of alleged whistleblower discrimination by Japanese employer doing business in United States, Ninth Circuit finds that U.S.–Japan Treaty of Friendship, Commerce and Navigation does not preempt ...

In case of alleged whistleblower discrimination by Japanese employer doing business in United States, Ninth Circuit finds that U.S.–Japan Treaty of Friendship, Commerce and Navigation does not preempt state employment laws, unless latter conflict with limited Treaty right to discriminate in favor of hiring Japanese citizens

Martin Ventress, a flight engineer, and Jack Crawford, a commercial pilot (Plaintiffs), complained of an incident in which JAL required a seriously ill pilot to fly in violation of American and Japanese aviation laws. Ventress and Crawford were employed by Hawaii Aviation Contract Services, Inc. (HACS) to perform services for Japan Airlines and its subsidiaryJalways Co., Ltd. (collectively “JAL”). Crawford suffered harassment from superiors after expressing concern about the incident. Ventress was likewise harassed after reporting the incident to JAL, HACS and aviation regulators. Plaintiffs sued Japan Airlines and others [Defendants] in California federal court seeking damages for Defendants’ violation of California’s whistle blower statute, wrongful termination in violation of the public policy protecting whistle blowers and emotional distress. The district court granted Defendants’ motion to transfer the case to the district of Hawaii.

The Hawaii district court gave Defendants judgment on the pleadings on the ground that the Friendship, Commerce, and Navigation Treaty, U.S.‑Japan, in force, October 30, 1953; 4 U.S.T. 2063; T.I.A.S. 2863; 206 U.N.T.S. 143 (FCN Treaty) preempted all of the Plaintiffs’ claims. When Plaintiffs appealed, however, The U.S. Court of Appeals for the Ninth Circuit reverses. The Court rules that the FCN Treaty does not preempt state employment laws.

The Treaty’s language conferring on Japan the right to engage specialists “of their choice”, grants “only the limited right to discriminate in favor of their fellow citizens.” [Slip op. 8]. Thus, the Treaty does not conflict with State whistleblower protection laws.

The purpose of the “of their choice” clause of the FCN Treaty was to “ensure the foreign company’s ability to control its overseas investments without interference from local‑hiring quotas. The legislative history of the post‑war treaties suggests that both parties deemed the right to utilize the services of their own nationals in managerial, technical, and confidential capacities to be critical.” [Slip op. 5].

“Given the purpose and history of the FCN treaties, our sister circuits have consistently held that foreign employers do not enjoy immunity from domestic employment laws that do not interfere with the employers’ ability to hire their fellow citizens.” [Slip op. 6].

“We hold that the district court erred [in ruling] that JAL has a treaty right to ignore domestic employment law even for personnel decisions that involved only non‑Japanese citizens. ... California’s whistle‑blower protection laws in no way conflict with JAL’s limited treaty right to discriminate in favor of Japanese citizens. In the absence of conflict, there can be no preemption.” [Slip op. 6‑7].

Citation: Ventress v. Japan Airlines, 2007 WL 1192010; No. 04‑17353 (9th Cir. April 24, 2007).