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In re Nazi Era Cases Against German Defendants Litigation

March 1, 2001

IN RE:
NAZI ERA CASES AGAINST GERMAN DEFENDANTS LITIGATION



FOR PUBLICATION

This Matter Relates To: Simon Frumkin et al. v. JA Jones, Inc. et al., (C.D. Cal.) C.A. No. 2:00-9624

MDL No. 1337

OPINION

BASSLER, DISTRICT JUDGE

Plaintiff Simon Frumkin seeks recovery against Defendants Philipp Holzmann AG, Philipp Holzmann USA, and J.A. Jones, Inc., for damages resulting from his forced labor in Nazi Germany from July, 1944 to April, 1945. The Nazi government contracted with Defendants *fn1 to construct a secret underground airplane hanger/factory complex during World War II. *fn2 Plaintiff claims that he and his deceased father were exploited, tortured, starved, and forced to perform crushing labor by Holzmann in the construction of the complex.

Defendants move to dismiss under FRCP 12(b) on numerous grounds, only two of which are addressed in this opinion: the political question doctrine and international comity. After thorough consideration of the voluminous submissions of the parties and the Statement of Interest filed by the United States government, and after having heard oral argument, this Court concludes that Plaintiff's claims should be dismissed with prejudice. The Court grants Defendants' motion, on the grounds that Plaintiff's claims present non-justiciable political questions, and that the Court should decline to exercise jurisdiction in the interests of international comity.

I. Background

This is the last of more than fifty cases that were consolidated before the Court as the result of a "motion for centralization," pursuant to 28 U.S.C. § 1407, brought before the Judicial Panel on Multidistrict Litigation ("MDL Panel"). (MDL Transfer Order, Docket No. 1337 (August 4, 2000)). In the overwhelming majority of the consolidated cases, Plaintiffs sought voluntary dismissal with prejudice. Voluntary dismissal in those cases was subsequently granted, pursuant to an opinion of the Court dated December 5, 2000. See In re: Nazi Era Cases Against German Defendants Litigation, 198 F.R.D. 429 (D.N.J. 2000).

In its transfer order, the MDL Panel indicated that common to the actions before the Court were claims against German companies, including banks, insurance companies, and industrial corporations, (collectively "German Industry"), which arose from conduct occurring during the Nazi era. These cases were transferred in light of "an important international agreement which promises to present significant common pretrial issues pertaining to the settlement or dismissal of the actions." (MDL Order at 2).

The "important international agreement" referred to in the Transfer Order is that embodied in the German Foundation "Remembrance, Responsibility and the Future" ("The Foundation"). The Foundation is the result of a collaboration among American plaintiffs' attorneys, representatives of German Industry, numerous governments including those of the United States, Germany, and Israel, and other non-governmental organizations. The Foundation was designed to provide some measure of compensation to the many surviving victims of the Nazi era whose claims rest on the conduct of German Industry during that period, and whose claims have allegedly been ignored by prior efforts to compensate victims of Nazi aggression. In exchange for this compensation, surviving victims agree to provide German Industry with legal peace. *fn3

As agreed to during negotiations, the Foundation provides that before any victims receive individual compensation, the legal peace promised to German Industry must be secured in the form of dismissal with prejudice of all lawsuits brought by victims against German Industry pending in the courts of the United States. Given the unique opportunity presented by the Foundation, the overwhelming majority of Plaintiffs with claims before the Court either noticed or moved for voluntary dismissal of their claims with prejudice. Also in keeping with the goals of the Foundation, Defendant companies have moved to dismiss with prejudice the only action remaining in this Court, namely that brought by Plaintiff Frumkin.

A. Procedural History

This action was commenced by Plaintiff Frumkin in the Superior Court of California for the County of Los Angeles on April 14, 2000. The action was subsequently removed to the Central District of California by Defendants. The basis for removal was jurisdiction pursuant to 1) 28 U.S.C. § 1331 (violations of international treaties, fundamental human rights laws and customary international law); 2) 28 U.S.C. § 1332(a) (diversity); and 3) 28 U.S.C. § 1367 (supplemental jurisdiction).After removal to the Central District of California, Frumkin's action was transferred to this Court by order of the MDL panel for consolidated pre-trial proceedings, pursuant to 28 U.S.C. § 1407. (MDL Transfer Order, Docket No. 1337 (August 4, 2000)).

B. Factual History

The grim reality of German Industrial atrocities committed before and during World War II have been well-documented, by scholars and courts alike. Plaintiff's action is typical of those that were before the Court as a result of the MDL Panel's Transfer Order, all of which asserted claims either stemming from the appropriation of property, or from enslavement, torture, and murder by German Industry. In addition to claims for his own slave-labor related injuries, Frumkin has brought a wrongful death action on behalf of his deceased father, who Defendants allegedly worked to death before Plaintiff's eyes.

Frumkin was born in Kovno, Lithuania, on November 5, 1930, and resided there until that city's military occupation in July of 1944 (Complaint, ¶ 1). He and his father were transported to a labor camp in Germany, where they were forced by Holzmann to construct a subterranean aircraft hanger and warplane manufacturing plant. (Complaint, ¶ 12). The Nazi government entered into a contract with Holzmann for the construction of this facility, which was to be used as a locus for the assembly and concealed operation of warplanes for the Luftwaffe. (Complaint, ¶¶ 10, 12).

Following a daily five-mile trek to the construction site from their camp, twenty thousand laborers, including Frumkin and his father, worked 12-hour shifts, seven days a week, in an effort to complete the facility. (Complaint, ¶¶ 13,15). In order to increase productivity, daily beatings and torture were employed, which resulted in the deaths of more than 5,000 slaves at the hands of Holzmann's supervisors. (Complaint, ¶¶ 28-31). Holzmann's slaves faced the constant threat of being killed if they refused to work. (Complaint, ¶ 40).

Plaintiff's father, Nicholas Frumkin, died as a result of his enslavement on April 7, 1945, just 20 days before the camp's liberation. (Complaint, ¶¶ 1, 46). According to Frumkin, the gold dental work in his father's teeth was then pried out of his father's mouth under Defendant's directive. (Complaint, ¶ 1).

II. Analysis

Defendants have assembled a laundry list of legal theories supporting dismissal of Plaintiff's claims. *fn4 A number of these legal arguments, each independently justifying dismissal, have recently been relied on by two courts in this District in dismissing the factually similar claims of other slave laborers. See Burger-Fischer v. DeGussa AG, 65 F.Supp.2d 248 (D.N.J. 1999) (claims of World War II slave laborers present non-justiciable political questions); Iwanowa v. Ford Motor Company, 67 F.Supp.2d 424 (D.N.J. 1999)(claims barred by treaty, expiration of statute of limitations, *fn5 political question doctrine, and international comity).

The Court limits this opinion to the two arguments that are inescapably fatal to Frumkin's action; namely that his claims present non-justiciable political questions, and that in the interests of international comity, this Court should decline to exercise jurisdiction over his claims. *fn6 The Court reaches these conclusions based on the pervasive intervention of the political branches of government into this area over the last 55 years; pervasive intervention which has culminated in the newly-created Foundation "Remembrance, Responsibility, and the Future."

A. Political Question Doctrine

1. Generally

The political question doctrine like standing, mootness and ripeness places constitutional and prudential limits on the power of the federal courts to adjudicate certain kinds of claims. Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C. Cir. 1983). Because the conduct of the foreign relations of our government was committed by the founding fathers to the Executive and Legislative branches, claims which implicate the government's foreign policy may pose political questions. U.S. CONST. art. II, § 2. The political question doctrine in this area is an entirely judicial extension of that fundamental commitment of power to Congress and the President. Courts have held that "the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). "Properly understood, the political-question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been `constitutional[ly] commit[ted].'" Goldwater v. Carter, 444 U.S. 996 (1979)(Brennan, J. dissenting), quoting Baker v. Carr, 369 U.S. 186, 211-213 (1962).

"[T]he Framers `did not make the judiciary the overseer of our government.'" Dames & Moore v. Regan, 453 U.S. 654, 660 (1981), quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952)(Frankfurter, J., concurring). Instead, where adjudication of a dispute would cause a court to resolve "political questions," the proper course for a court is to dismiss the action. 767 Third Ave. Assoc. v. Consulate General of Socialist Fed. Rep. of Yugoslavia, 218 F.3d 152, 164 (2nd Cir. 2000), quoting Baker v. Carr, 369 U.S. 186, 217 (1962).

The application of the political question doctrine is not absolute. Baker, 369 U.S. at 211. The doctrine must be cautiously invoked, and the mere fact that a case touches on the political process does not necessarily create a political question beyond courts' jurisdiction. Nixon v. Herndon, 273 U.S. 536, 540 (1927); Can v. United States, 14 F.3d 160, 163 (Fed. Cir. 1994). Even so, when a question relates to foreign affairs, courts will be more hesitant to consider certain questions on the merits than when internal operations are involved. Atlee v. Laird, 347 F.Supp. 689, 696 (E.D. Pa. 1972).

In Baker v. Carr, the Supreme Court thoroughly analyzed political question jurisprudence, and in the area of foreign relations determined that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." 369 U.S. at 211. Instead, foreign relations decisions have invariably demonstrated "a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." Id. at 211-12.

The Baker court formulated a test for when an action should be dismissed as non-justiciable because it presented a political question. Justice Brennan, writing for the majority, held that a court should only dismiss an action if at least one of the following six formulations is inextricable from it:

Prominent on the surface of any case held to involve a political question is [1] found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217.

The political question doctrine does not abrogate the existence of federal judicial power, it merely limits its exercise, so that even if a court has the constitutional power to adjudicate a dispute, if the dispute presents a political question, it should decline to do so. Atlee, 347 F.Supp. at 701; see generally Powell v. McCormack, 395 U.S. 486, 516-19 (1969).

"Rules of justiciability serve to make the judicial process a principled one," and any decisions arising after a departure from those rules "lack the clarity and force which ought to inform the exercise of judicial authority." Renne v. Geary, 501 U.S. 312, 324 (1991). Regardless of how compelling Plaintiff's claim is, if it is inexorably linked to the conduct of foreign affairs it presents a political question, and this court must decline to reach the merits.

2. Frumkin's Claims

To resolve a justiciability issue, a Court should examine the pleadings and the record to determine the nature of the underlying dispute and the interests of the parties in having the dispute resolved. Renne, 501 U.S. at 316. Plaintiff fundamentally misinterprets the nature of the political question doctrine, when he argues that "Defendants rely on Baker and claim Plaintiff's claim is a political question. This is just plain wrong. Plaintiff is bringing an individual claim against a private company." (Opposition Brief, p. 36). The issue is not how Plaintiff has styled his suit, but instead what the underlying controversy is.

At its heart, the underlying dispute here is one arising from atrocities committed by supporters of and collaborators with the German National Socialist State during World War II. While Plaintiff almost certainly was enslaved by a private company, as opposed to the Nazi government or German military, one need only look to the labor Frumkin was forced to perform (construction of a military airbase) to see that Holzmann's abuse of Frumkin was fundamentally interrelated with the Nazi war effort. See In re World War II Era Japanese Forced Labor Lit., 114 F.Supp.2d 939, 948 (N.D. Cal. 2000)(discussion of Japanese corporate involvement in war effort).

Claims for war reparations arising out of World War II have always been managed on a governmental level, beginning with the Potsdam Agreement *fn7 which was entered into immediately upon the war's conclusion. *fn8 This agreement memorialized the dual policy determinations of the Allied governments that reparations should be exacted from Germany to compensate victims to the greatest extent possible, and that in the process Germany should be converted into a non-industrial country that would be unable to again wage war. Id.

Essentially, after Potsdam the Allies intended to punitively divest Germany of its remaining public and private industrial base, and convert it into a neutral, pastoral land. At the 1946 Paris Reparation Conference, the United States and seventeen other allied nations met to formulate more specific plans for the extraction and division of German war spoils. The Paris Agreement *fn9 intended to divide 75% of surviving German assets, including external capital, internal industrial and capital equipment, merchant ships, and monetary gold. As a result of the Paris Agreement, the private industrial base of Germany would be dismantled and proportionally distributed to the Allied nations, in satisfaction of their claims, and the claims of their nationals. *fn10

Not long after the Paris Agreement, the increased Soviet threat and start of the Cold War forced the Western Allies to cease their dispersal of the German industrial base, and balance the extraction of reparations with the restoration of a healthy German economy. See Burger-Fischer, 65 F.Supp.2d at 264-65; Iwanowa, 67 F.Supp at 451-52. A shift by the Western Allies to an anti-communist policy was reflected in the Transition Agreement, *fn11 which ended both the military occupation of Germany and the direct extraction of reparations. Under the Transition Agreement, responsibility for compensating victims of Nazi oppression was shifted directly to the Federal Republic of Germany. As with the Paris Agreement, the Transition Agreement reserved the final settlement of reparations for an eventual peace treaty.

The 1953 London Debt Agreement *fn12 was then implemented "to stabilize the German economy and fully integrate it into the community of free nations, thus furthering overall European prosperity and strengthening the military forces standing in the way of Soviet expansion." Burger-Fischer, 65 F.Supp.2d at 268. External debts arising not only out of World War II but out of World War I and both post-war periods were re-structured to allow for a rebuilding of the German economy. In keeping with the Transition Agreement, claims for Nazi-era wrongs continued to be addressed by German restitution and compensation legislation, and the question of a final settlement of reparations was again deferred.

After the fall of the German Democratic Republic in 1989, a final multinational peace treaty with Germany became possible. The 2 4 Treaty, entered into on September 12, 1990, reunited Germany and restored to it full sovereignty over internal and external affairs. While reflecting a final settlement with the Allies, the 2 4 Treaty neither expressly provided for nor precluded additional reparations claims. Since the potential justiciability of claims for Nazi atrocities had seemingly been deferred by the Paris, Transition, and ...


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