Litigation

Learn about our recent milestone victory at the IACHR.

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Between 1996 and 1999, five lawsuits were filed on behalf of JLA internees.  The Mochizuki, et al. v. USA case resulted in a controversial settlement whereby the U.S. government agreed to issue apology letters and compensation payments of $5,000 per surviving internee.  While the settlement agreement prohibited further litigation, there was a provision that specifically permitted pursuit of legislation for equitable relief in the U.S. Congress.  The other four lawsuits were dismissed on procedural grounds by the U.S. courts.

Unable to secure justice through the U.S. judicial system, the JLA redress struggle continues in the international arena.  In June 2003, a petition on behalf of three Japanese Peruvian brothers was filed with the Inter-American Commission on Human Rights (IACHR, a body of the Organization of American States) to hold the U.S. government accountable for the ongoing failure to provide redress for war crimes and crimes against humanity. Despite the passage of over fourteen years, a ruling by the IACHR is still pending.

IN THE U.S. COURTS

Carmen Mochizuki, Alicia Nishimoto, Koshio Henry Shima, Sumiko Tsuboi & Masaji Sugimaru v. USA, 43 Fed.Cl. 97 (1999) 

On August 27, 1996, the Mochizuki lawsuit was filed by five former JLA internees who had been denied redress under the Civil Liberties Act of 1988 (CLA) in U.S. District Court, Central District of California, Case No. 96-cv-5986 JSL) and then transferred to the U.S. Court of Federal Claims  (Case No. 94-294C).  Plaintiffs charged the U.S. government with discriminatory denial of redress under the U.S. Constitution and international law.  Two years later following settlement negotiation, the U.S. government made a “take it or leave it” settlement offer which was accepted by the majority of the JLAs with mixed emotion and concern.  On January 25, 1999, the court approved the settlement agreement, which included individual presidential apology letters and a one-time per capita payment of $5000 to each JLA internee who was alive at time of the passage of the CLA (August 10, 1988), as long as monies were available in the CLA fund.  Any JLA internee that did not opt out of the settlement would be bound by the agreement and barred from further litigation against the U.S. arising from his/her internment.

The majority of the JLAs accepted the settlement agreement with the understanding that:

• the U.S. government would publicly acknowledge wrongdoing for the first time;
• individual presidential apology letters would be sent to surviving JLA internees; and
• further efforts to seek legislative remedy from the U.S. Congress would not be prohibited.

However, serious concern was raised as to the sincerity of the government’s acknowledgment of wrongdoing and apology after it was received:

• the apology letter was not on official government letterhead (the JA apology letter had the Presidential seal) and made no mention of “Japanese”, “Latin America” nor the scope and severity of the constitutional and human rights violations;
• the choice of wording and tone for the Japanese translation of the apology letter;
• public notification to JLA internees was inadequate (limited to an announcement published in one Japanese and one Peruvian newspaper for only one day);
• there was no guarantee of compensation payments despite the likelihood that the CLA funds would be depleted before all payments were made;
• disparity between compensation payments to JLAs ($5000) and JAs ($20,000) was a denial of equitable treatment, and
• any JLA internees who were unaware of the proceedings but might come forward in the future would be denied their right to redress; and
• government refusal to share information about redress applications completed by JLA internees with the attorneys for the JLA internees prevented proper legal representation to ensure claims were being processed fairly by the government.

One month later, the CLA redress program ended, leaving hundreds of JAs and JLAs without compensation due to depletion of funds.  By December 1999, additional funds were secured and payments resumed to remaining claimants.

A total of 797 JLAs received redress payments and apology letters.  152 received $20,000 and the apology letter composed for JA incarcerees under the CLA (due to “retroactive permanent residency”).  645 received $5,000 and the apology letter composed for JLA internees under the Mochizuki settlement.

17 JLAs opted out of the settlement agreement.  Among them were 7 U.S. residents, 5 persons living in Peru, and 5 living in Japan.

Four other lawsuits were also filed on behalf of JLAs:

Koshio Henry Shima v. Reno/Ashcroft (USA) 11 F. App’x 923 (9th Cir. 2001)

In August 1998, the Shima lawsuit was filed in U.S. District Court, Central District of California by one of the named plaintiffs in the Mochizuki lawsuit who rejected the settlement agreement.  This lawsuit sought equitable redress under constitutional and international law, including full benefits under the CLA. In 1999, this case was transferred to the Court of Federal Claims and then re-transferred to the U.S. District Court, where the case was dismissed. On May 2, 2001, the Ninth Circuit Court of Appeals upheld the dismissal in an unpublished decision, rejecting the  argument that the U.S. government was maintaining an ongoing policy of continuing violations and discrimination against JLAs from the war years through 1998. An appeal was not made to the U.S. Supreme Court.

National Coalition for Redress/Reparations & Joe Suzuki v. USA 248 F.3d 1172 (9th Cir. 2001)

In October 1998, the NCRR-Suzuki lawsuit was filed in U.S. District Court, Northern California, charging government malfeasance for failure to invest the $1.65 billion redress fund at no less than 5% interest as required under the CLA, resulting in an estimated loss of $200 million to the fund for compensation and education purposes.  Due to the failure to invest, the CLA redress program ended without making compensation payments to the remaining eligible internees.  This case sought to ensure adequate funding for compensation payments to Japanese American and Japanese Latin American internees and to recover the remaining $45 million owed to fulfill the educational fund mandate.  Almost a year later, the case was dismissed, upholding the government position that Plaintiffs suffered no legal injury.  On February 15, 2001, the Ninth Circuit Court of Appeals upheld the dismissal, stating Suzuki’s appeal was moot since the U.S. Congress had appropriated funds and he had received payment of $5,000 under the Mochizuki settlement.  It also ruled that NCRR lacked standing to sue since the fund was terminated and its administering board no longer existed.

Kay Sadao Kato, Jane Yano, Makoto Ogura, Shizue Ogura, Kenjiro Ogura, & Yasuo Ogura, aka Yasuo Okui, v. USA 246 F.3d 674 (9th Cir. 2001)

In December 1999, the Kato, Yano & Ogura lawsuit was filed in U.S. District Court, Central District of California, charging the U.S. government with continuing official policy of discrimination for the wartime violations of the fundamental civil rights of JA and JLA internees and ongoing denial of apology and redress. These 6 plaintiffs of Japanese descent were born in three different countries (the U.S., Japan, and Peru) and all wrongfully imprisoned in the U.S. during WWII.   Mr. Kato was a US naturalized citizen; Ms. Yano was a U.S. citizen born in camp after the ending date of the internment period which was erroneously stated in the CLA as June 30, 1946 instead of February 28, 1948 (which also affected babies born in camp to JLA parents after the cut-off date); and the Ogura family, who were four members of a family seized from their home in Peru, interned in the U.S., and then deported to Japan as exchange hostages.

The court later dismissed the case, ruling that all legal action was barred by the statute of limitations since internees had one year after release from the prison camps to file a lawsuit against the U.S. government. This decision was upheld in January 2001 by the Ninth Circuit Court of Appeals in an unpublished decision. In 2002, the U.S. Supreme Court refused to consider the case and let the lower court dismissal stand.

Isamu Carlos Shibayama, Kenichi Javier Shibayama, & Takeshi Jorge Shibayama v. Reno (USA) 55 Fed. Cl. 720 (2002)

In February 1999 the Shibayama lawsuit was filed in U.S. District Court on behalf of three Japanese Peruvian brothers who opted out of the Mochizuki settlement, claiming their eligibility for full redress under the CLA of 1988 and charging the U.S. government with ongoing discrimination and violations of the U.S. federal civil rights and humanitarian law and seeking equitable redress.  In October 1999, the case was transferred to the Federal Court of Claims, which in 2002, ruled that JLAs were not eligible under the CLA unless they had applied for and were granted retroactive permanent resident status to the time of their internment.  The court also ruled that it did not have jurisdiction to consider their claim for redress equity for civil and human rights violations.

AT THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Isamu Carlos Shibayama, Kenichi Javier Shibayama, & Takeshi Jorge Shibayama v. USA, Case No. 12.545

After exhausting domestic remedies in the U.S. courts, the Shibayama Petition was filed in June 2003 with the Inter-American Commission on Human Rights (IACHR), a body of the Organization of American States, and deemed admissible on March 16, 2006.  The U.S. government is charged with the ongoing failure to provide redress for crimes against humanity perpetrated against the three JP brothers as children during WWII and for equitable redress for continuing violations of U.S. federal civil rights and humanitarian law.

What Happened

The three brothers were Peruvian citizens of Japanese ancestry when they were abducted from Peru, a country with which the U.S. was not at war. Along with their parents and three other siblings, they were loaded at gun point onto a U.S. ship, stripped of their identity and nationality documents by U.S. officials, transported to the U.S., and imprisoned in a Department of Justice internment camp from March 23, 1944 until September 9, 1946.  Their grandparents were seized earlier and used in a hostage exchange for U.S. citizens held in the Far East.  They never saw their grandparents again.

At the end of the war, the Shibayama family was paroled out of camp to a vegetable processing plant after Peru refused to allow the family to return to Peru. Art and other members of his family worked at the plant for low wages and had 30% of their wages taxed because they were classified as “illegal aliens.”  In the 1950s, with changes in U.S. immigration law, the Shibayama family was able to change their status to permanent residents and later became U.S. citizens.

Seeking Justice With the IACHR

After being denied redress under the CLA, rejecting the Mochizuki settlement agreement, and not finding justice through the U.S. court system, the Shibayama brothers are pursuing their claims against the U.S. government at the IACHR.

The Shibayama brothers claim that their rights under the following articles of the American Convention on the Rights and Duties of Man have been violated: Article I (liberty and personal security); Article II (equality before the law); Article V (attacks on private and family life); Article VIII (freedom of residence and from forced departure); Article XII (right to education); Article XIV (right to fair remuneration); Article XVIII (right to a simple, brief procedure in national courts); Article XXV (freedom from arbitrary arrest and detention); and Article XXVI (right to due process).

On March 21, 2017, a public hearing in the Shibayama case was held by the IACHR, with testimony given by former JP internee Art Shibayama, his daughter Bekki Shibayama, JPOHP Director Grace Shimizu, and Attorney Paul Mills.  Petitioners elaborated on the violations endured, the impact on the internees and their families, the scope of remedies, and the urgency for expedited ruling.