Much Ado, But Nothing: California's New World War II Slave Labor Law Statute of Limitations and Its Place in the Increasingly Futile Effort to Obtain Compensation from American Courts
Washington and Lee University - School of Law
NS-FORCED LABOR: REMEMBRANCE AND RESPONSIBILITY, p. 201, Peer Zumbansen, ed., 2002
Whittier Law Review, Vol. 23, p. 121, 2001-2002
Washington & Lee Legal Studies Paper No. 2012-1
More that fifty years after the dreaded events took place in Europe and along the Pacific-Rim, the California legislature has created a new cause of action that allows residents of California to seek redress in California courts for the atrocities of Nazi Germany and the Axis powers, especially for the use of forced labor by their industries during the war. The new cause of action is supported by an extraordinary, retroactive statute of limitations that reaches across all those years and keeps the doors of California’s courts open to these new claims until midnight of December 31, 2010. However, regrettably, the statute of limitations established by California’s new Code of Civil Procedure § 354.6 does little to make justice more likely. The courts are dismissing these claims, even as the few remaining victims carry their nightmares to their final breath, on the grounds that they constitute a question of America’s international, political interests as expressed in and resolved by numerous post-war treaties and agreements which can be read as having disposed of these claims.
California’s new provision of civil procedure, § 354.6, uses sweeping terms to position itself as a comprehensive response to the darkest moment of the last century. It is an action for recovery of compensation and an attending statute of limitation for “Second World War slave or forced labor victims and their heirs.” The provision’s definition of compensation is equally broad, allowing the claimants to seek two forms of compensation: “the present value of wages and benefits that individuals should have been paid” based on present market value plus interest; and a suit in tort for “damages for injuries sustained in connection with the labor performed.” Section 354.6 also creates subject matter jurisdiction for the California superior courts and strongly suggests personal jurisdiction by allowing the cause of action to be brought against “any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate.”
Only one of the ten Nazi-era lawsuits filed between the end of the war and 1996 was dismissed due to the expiration of the statute of limitations. German courts enforced a statute of limitations against the claims of Hugo Prinez in the mid-1980s, but the Supreme Court dismissed the case after concluding that the Federal Sovereign Immunities Act failed to extend subject matter jurisdiction over the case to the U.S. federal courts. The defendants in the modern period of Nazi-era litigation have relied on a uniform battery of defenses in seeking to have the cases dismissed. The Swiss Banks is the first of the modern cases that did not rely on an alleged violation of the statute of limitations as a primary ground for seeking the dismissal of the suit. The Swiss Banks’ motion to dismiss has become the model for defense strategy in subsequent Nazi-era litigation. The Iwanowa court dismissed the case after concluding that the claims based on international law were invalid because the history of the treaties between Germany and its former enemies allowed the pursuit of reparations claims after the Two-Plus-Four treaty was implemented in 1991, but because of the extreme political nature of the circumstances involved in the case, such efforts were limited to intergovernmental negotiations and did not permit private litigation, and that the U.S. and German claims were invalid because they were barred by the statute of limitations.
One commentator describes the intended effect of § 354.6 in this way: “The defendants claim that United States courts have no jurisdiction to hear these cases and, ‘even if they did, the statute of limitations has expired.’” In the only reported decision of a § 354.6 case to date, In re World War II Era Japanese Forced Labor Litigation, the new provision seems to have succeeded in rendering moot the statute of limitations issue. Two significant point emerge from the Court’s order: the motion to dismiss addressed by the Court appeared not to assert the expiration of the statute of limitations, and that the statute of limitations issue will not be decisive in these cases. However, the U.S. Supreme Court’s decision in Crosby v. National Foreign Trade Counsel hints that the entire provision may be preempted as an unconstitutional interference with the supremacy clause. It seems possible, following Crosby that California’s § 354.6 will be preempted by the federal (treaty) law on the issue.
Number of Pages in PDF File: 14
Keywords: International Law, Transnational Law, Civil Procedure
JEL Classification: K10, K33
Date posted: February 2, 2012