UNITED STATES OF AMERICA, PETITIONER V. WILLIAM HOHRI, ET AL. No. 86-510 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals For the District of Columbia Circuit Reply Brief for the United States In our opening brief, we showed that the court of appeals committed six errors, incorrectly holding that (1) mixed Tucker Act/Federal Tort Claims Act (FTCA) cases are properly appealed to the regional circuit rather than the Federal Circuit; (2) this was a mixed case because respondents' FTCA claims were not frivolous; (3) the statute of limitations had been tolled because the government "misled" this Court in the wartime evacuation cases; (4) tolling was justified because the holdings of those cases precluded claims under the Takings Clause; (5) tolling continued until the government made an "authoritative statement" (J.A. 56) that the evacuation had been a "legal error" (J.A. 60 n.67); and (6) such an "authoritative statement" came in 1980 rather than in 1976 Presidential Proclamation. Respondents and amici have failed to demonstrate that the court of appeals was correct on any of these points. 1. Resolution of the "mixed case" jurisdictional question requires an inquiry into how Congress intended to reconcile two competing policies that are both embodied in the Federal Courts Improvement Act: a policy of placing all nontax Tucker Act appeals in the Federal Circuit and a policy of leaving FTCA appeals in the regional circuits. Respondents demonstrate that the latter policy exists (Resp. Br. 14-15) but do not demonstrate that the latter policy predominates over the former when the two are in conflict, as they are in all mixed Tucker Act/FTCA cases. /1/ Respondents suggest that the key to the jurisdictional puzzle is the Federal Circuit's status as a court of limited jurisdiction (Resp. Br. 13, 17-18). /2/ But all federal courts are courts of limited jurisdiction, the regaional circuits no less than the Federal Circuit (id. at 18 n.9; U.S. Br. 19 & n.14). Congress's intent to take Tucker Act cases away from the regional circuits is just as clear as its intent not to make the presence of an FTCA claim a sufficient basis for Federal Circuit jurisdiction. /3/ The question is which of two competing policies Congress intended to yield in case of conflict, and the analysis of that question is not advanced by observing that one court or the other has limited jurisdiction. Respondents' related assertion that "(t)he Federal Circuit was * * * viewed with suspicion" (Resp. Br. 17) is equally unhelpful and, in fact, misleading. The only "suspicion" of the Federal Circuit was expressed by those patent lawyers who unsuccessfully opposed its creation. /4/ Congress, by contrast, emphasized that the Federal Circuit was not to be regarded as a "specialized court" with limited competence (see U.S. Br. 19-20 n.14). As Congressman Sawyer put it (1981 House Hearings 45): I feel very good about this bill. I had reservations about it to start with, I guess because of this phobia of a highly specialized court. But this court will have a fungibility, if we want to use that term, with all the other courts of appeals * * * . Respondents attempt (Resp. Br. 15-16) to draw an inference from the slightly different wording of subsections (a)(1) and (a)(2) of 28 U.S.C. 1295. Section 1295(a)(1) gives the Federal Circuit exclusive jurisdiction over all 28 U.S.C. 1338 appeals, "except that a case involving a claim arising under any Act of Congress relating to copyrights or trademarks and no other claims under section 1338(a)" is appealed to a regional circuit. Because the "except clause" of Section 1295(a)(2) does not contain the words "and no other claims," respondents infer that it governs when an FTCA claim is raised with other claims (including Tucker Act claims) as well as when the FTCA claim stands alone. Although we agree that Section 1295(a)(2) is phrased more ambiguously than Section 1295(a)(1), we submit that the same approach to Federal Circuit jurisdiction is embodied in each subsection. Though less than crystal clear, the language of Section 1295(a)(2) lends itself most naturally to the reading we advocate (see U.S. Br. 20-21) and certainly does not compel the conclusion that "except clause" claims may never be heard in the Federal Circuit, even when joined with claims over which that court would otherwise have exclusive jurisdiction. Moreover, respondents offer no answer to our demonstration (id. at 21-25) that the "except clause" of Section 1295(a)(2) lists those Section 1346 claims that Congress gradually determined should not vest exclusive jurisdiction in the Federal Circuit, rather than claims that Congress singled out to divest the Federal Circuit of its otherwise exclusive jurisdiction over mixed or unmixed Tucker Act cases. /5/ Congress's action in moving claims to the "except clause" from the category of exclusive Federal Circuit jurisdiction, without any discussion of an affirmative intention to keep all such claims away from that court, overrides any inferance that might be drawn from the different language of subsections (a)(1) and (a)(2). Finally, respondents renew in their brief (at 18-20) the claim that we conceded away our jurisidctional argument while litigating this case before the D.C. Circuit. That claim is both immaterial and wrong. Parties cannot waive defects in the jurisdiction of a federal court. /6/ And in any event, as we demonstrated at the petition stage (U.S. Reply Memo. 2-6), we have never conceded away our jurisdictional argument. /7/ 2. There is general agreement between respondents and us that the assertion of nonfrivolous claims in a complaint, and not the ultimate determination whether those claims are jurisdictionally valid, controls the routing of an appeal under Section 1295(a)(2). U.S. Br. 26-27 & n.23; Resp. Br. 18. We contend (U.S. Br. 26-28) and respondents deny (Resp. Br. 18-19) that their FTCA claims were frivolous. Respondents do not dispute our showing that their FTCA claims are untenable under well-established law, but they say that they are "fully within their rights to seek * * * a modification of existing law" (Resp. Br. 19). Respondents misunderstand the nature of the defect in their FTCA claims. Respondents allude to circumstances that they say are "extraordinary" and should justify a waiver of the administrative-filing requirement of the FTCA, but it has been universally held that no set of circumstances can justify a waiver (see U.S. Br. 27-28 & n.24). That is not a judge-made rule; it is the unanimous reading of the intent of Congress in enacting 28 U.S.C. 2401(b) and 2675. Yet respondents have never, at any point in this litigation, offered any argument to suggest that the courts have been mistaken in construing Congress's intent. In these circumstances, respondents' desire to change the existing law simply is not enough to render their claims nonfrivolous. /8/ 3. As to the merits, respondents and amici argue that the statute of limitations was tolled because the United States knowingly misled this Court simply by claiming that the wartime evacuation was justifiable. See, e.g., Resp. Br. 7 (emphasis in original) ("government officials actually knew during the war that there was no factual justification for the claim of 'military necessity'"); accord Korematsu Br. 15; Calif. Br. 26; ACLU Br. 29; AFSC Br. 7. /9/ As we noted in our opening brief (at 31), however, "military necessity" was (and is) a matter of judgment rather than fact. Whether right or wrong and no matter how deferential, this Court's assessment of the government's judgment of "military necessity" cannot be attributed to government deception as long as the Court was not misled as to the underlying facts. Neither respondents nor amici have shown that this Court was misled as to the pertinent facts. a. Respondents correctly note (Resp. Br. 23 & n.13) that undisclosed intelligence reports contradicted General DeWitt's Final Report insofar as it purported to find evidence of subversive activity among persons of Japanese ancestry. Respondents fail, however, to explain how this Court might have been misled by those assertions of the Final Report (which had not even been released at the time of the decision in Hirabayashi v. United States, 320 U.S. 81 (1943)). Expressly relying on the arguments made in Hirabayashi, before the Final Report was completed, the government in Korematsu v. United States, 323 U.S. 214 (1944), defended "the military judgment * * * (as) one with regard to tendencies and probabilities as evidence by attitudes, opinions, and slight experience." Brief for the United States at 11, 57, Korematsu. Although we join respondents in finding the inference quite objectionable, it remains true that the presentation to this Court was premised solely on an inference openly drawn from ancestral, cultural, and ethnic considerations (see U.S. Br. 31-32). /10/ In addition, the government's lack of reliance on General DeWitt's claims regarding supposed subversive activities was underscored through the explicit dis-incorporation of his allegations by a footnote in the government's Korematsu brief (see U.S. Br. 33). Although respondents and amici belittle that disclaimer and point to an earlier, more specific version of it, the disclaimer undoubtedly served its intended purpose of alerting the Court to the government's lack of reliance on the DeWitt claims. /11/ Its obvious importance was recognized both at the time and more recently by the Commission on War-time Relocation and Internment of Civilians (see 1.S. Br. 33 & n.27). There is no truth to the suggestion (Resp. Br. 26-28; Korematsu Br. 61-64) that the government retracted that disclaimer during the Korematsu oral argument. To be sure, the Solicitor General denied that the government had "repudiated the military necessity of the evacuation" simply because it did "not ask the Court to take judicial notice of the truth of every recitation or instance in the final report of General DeWitt" (Tr. 7, Korematsu). He likewise denied that the Final Re-ort itself somehow proved that General DeWitt "did not believe" that the evacuation was justified by military necessity (ibid.). The Solicitor General clearly distinguished, however, between "what the general was thinking" (id. at 8-9) and why the government did what it did, stating: "We are not speaking here * * * of merely the judgment of the commanding general in the area" (id. at 10; see also id. at 16). In accordance with this distinction and with the government's brief, he explained that "page references to the parts" of the Final Report on which the government relied were set forth in the brief (id. at 10) and repeatedly emphasized that it relied only on matters of "public" and "common" knowledge subject to "judicial notice" (id. at 8, 9, 10). /12/ b. Respondents charge the government with a second "deliberate falsehood()," relating to its wartime claim that the evacuation was justified because "there was insufficient time to separate the 'loyal' from the allegedly 'disloyal' Japanese Americans" (Resp. Br. 22-23). Respondents contend (id. at 24) that the "falsity" of this claim is demonstrated by the opinions of Lt. Commander Ringle and the FBI that a separation could be made. Respondents and amici also argue that an initial draft of General DeWitt's Final Report was suppressed because it would have revealed his belief that individual loyalty determinations were impossible, thus showing that the evacuation was based on intractable racism (see Resp. Br. 28-30; Korematsu Br. 42-50; Calif. Br. 26; ACLU Br. 7-9; AFSC Br. 9). On both of these points respondents and amici are wrong. It was no secret at the time Hirabayashi and Korematsu were decided that there was division within the government as to whether individual hearings, as opposed to mass evacuation, would have provided a timely safeguard against the perceived problem of potentially disloyal Japanese-Americans. With respect to this precise issue, Ringle's analysis (in its "anonymous" form as an article in Harpers Magazine) was cited to the Court over and over again. See Brief for Appellant at 20-21, Hirabayashi; Brief of the American Civil Liberties Union, Amicus Curiae, at 15, Hirabayashi; Brief for the American Civil Liberties Union, Amicus Curiae, at 23 n.11, Korematsu; Brief of Japanese American Citizens League, Amicus Curiae, at 107-108, Korematsu. On this point, as on the aspects of the Ringle report discussed in our opening brief (at 35-37 & nn. 29-30), the government did not commit fraudulent concealment by failing to attribute to named individuals dissenting positions that the Court knew full well had been taken within the government. /13/ Even less justified is the second claim of respondents and amici (which the court of appeals did not even address). They argue that the 1981 discovery in the National Archives of an initial draft of General DeWitt's Final Report is significant because that draft discloses for the first time that "the decision to intern Japanese Americans was based on racial and cultural prejudice rather than military considerations" (Korematsu Br. 44). /14/ The argument that the government commits "fraudulent concealment" when it edits (rather than releases) the first draft of an official publication is astounding. The first draft of the Final Report did not reveal any facts that the government suppressed in the editing process; it revealed certain opinions held by General DeWitt that simply were not the views of the United States and therefore were appropriately excised. /15/ Nor is it at all tenable to suggest that this Court would have decided Hirabayashi or Korematsu differently had it only known of General DeWitt's personal views. General DeWitt's opinions were "expressed often and publicly" (Personal Justice Denied 216), in congressional testimony and elsewhere, and included statements more patently offensive than anything edited out of the Final Report (see, e.g., id. at 221-222; J.A. 251). The wartime briefs presented that testimony and those views to the Court in an unsuccessful attempt at precisely the same argument that respondents and amici now seek to make -- i.e., that racial prejudice, not a judgment with respect to military necessity, motivated the evacuation. See Appellant's Reply Brief at 1 n.2, Hirabayashi; Brief Amicus Curiae of Japanese American Citizens League at 114-115, Hirabayashi; Brief for Appellant at 63; Korematsu; Brief of Japanese American Citizens League, Amicus Curiae, at 11, 108, 197-199, Korematsu; Brief of Japanese American Citizens League, Amicus Curiae, at 11, 108, 197-199, Korematsu; Petition for Rehearing at 17-18; Korematsu; see also Korematsu, 323 U.S. at 235-239, 241 n.15 (Murphy, J., dissenting). /16/ In short, this supposedly critical "concealed" evidence was spread before the Court at the time, if not by the government, then by its opponents. 4. Respondents in any event fail to show that this Court's decisions in Hirabayashi and Korematsu precluded timely suit on their Takings Clause claims. Respondents contend (at 31-34) that the "military necessity" found in those cases would have barred taking claims. See also Calif. Br. 17-18; AFSC Br. 5. As we demonstrated in our opening brief (at 37-38), however, the holdings in Hirabayashi and Korematsu were specifically limited to sustaining the necessity for temporary controls on personal movement, and they did not purport to suggest the presence of military necessity such as would justify a taking of property. /17/ Because this Court's decisions in Hirabayashi and Korematsu did not even consider whether property lost as a result of the evacuation was "taken" in the constitutional sense, the question whether evacuees could successfully bring taking claims was, at the very least, fairly open to debate; certainly, that question would have been eminently appropriate for litigation immediately after the war. Cf. Rostow, supra, 54 Yale L.J. at 516-519 (arguing that, if the Court had applied the "military necessity" test used in taking cases, the facts relied on in Hirabayashi and Korematsu would not have established such necessity). Yet, although evacuees may have brought "unavailing claims for compensation" under various theories after the war (Resp. Br. 22), no Takings Clause claims were filed, let alone rejected, in the four decades between the war and the present suit. Respondents are quite wrong in their citation (at 35-36) of the Japanese-American Evacuation Claims Act of 1948, 50 U.S.C. (& Supp. II) App. 1981-1987, and the allegedly inadequate compensation under that Act, as evidence that Takings Clause suits were precluded. That Act stemmed from the government's recognition that the evacuees were not mere "casualties of the war," that the unique losses that they suffered had been "inflicted * * * by a voluntary act of the Government," and that "redress" for those losses was "simple justice." H.R. Rep. 732, 80th Cong., 1st Sess. 5 (1947). These official concessions, far from supporting a preclusion of Takings Clause claims, would have been inconsistent with reliance on "military necessity" as a defense against such claims. Moreover, in administering the Act, the Attorney General concluded that the "claims (it invited) had, or that they should now be regarded as having had, substantive existence prior to the enactment of the statute affording the remedy" (Claim of Fumiyo Kojima, 1 Adj. Att'y Gen. 209, 212 (1951); see also Claim of George M. Kawaguchi, 1 Adj. Att'y Gen. 14, 17 (1960)). /18/ In addition, once Congress conferred jurisdiction on the Court of Claims to determine evacuees' claims under the Act (50 U.S.C. App. 1984(b)), that court actually interpreted its authority as permitting it to award more than just compensation, on the theory that its statutory mandate gave it freedom "to depart from the legalistic strictures of the normal rule." Sonoda v. United States, 154 Ct. Cl. 130, 140-141 (1961). If anytihing, then, proceedings under the Act tend to demonstrate that Hirabayashi and Korematsu would not have prevented evacuees from seeking full compensation for any taking of their property. 5. If, despite everything we have said, the statute of limitations was tolled, then, as the district court held, tolling ended "long ago" (J.A. 142). The evidence arguably material to a "military necessity" claim, but not revealed during wartime, had all appeared in government and other publications by 1950 and continued to be discussed through the years (see U.S. Br. 42-43 & n.36). The court of appeals rejected the obvious conclusion that any tolling therefore ended decades ago (see U.S. Br. 43-45), holding instead that it would end only with an authoritative admission of "legal error" (J.A. 60 n.67). That novel and untenable theory, which effectively abrogates the statute of limitations, is given only the most cursory nod by respondents, who deny (Resp. Br. 40) that the court below intended to espouse a "general rule" but fail to answer our showing (U.S. Br. 45-49) that Hirabayashi and Korematsu could not justify (if anything could) invention of a special non-rule for this case. /19/ Instead, respondents rely (Resp. Br. 44) on a theory that was unanimously rejected below -- that the statute of limitations was tolled until discovery of "proof that the government concealed the true facts from this Court * * * and that the government's concealment was knowing, rather than just a mistaken judgment on the issue of military necessity." Under this theory, respondents argue that the statute of limitations did not begin to run until 1981, when disclosure of the Ennis and Burling memoranda (J.A. 264-276) and discovery in the National Archives of the initial draft of the Final Report are said to have provided "the first direct evidence of deliberate governmental misconduct sufficient to stand a chance of overcoming this Court's approval of the government's claim of military necessity" (Resp. Br. 47). We have addressed (pp. 10-13, supra) respondents' assertions regarding the significance of the initial draft of the Final Report. The failure to disclose that document during the wartime litigation was not fraudulent concealment. A fortiori, its belated discovery in the National Archives cannot be determinative of when respodents had sufficient notice to require timely prosecution of their claims. Nor are the Ennis and Burling memoranda relevant. The court of appeals correctly held (J.A. 59) that those documents reflect no more than "one side of a heated debate within the Justice Department, and between Justice and the War Department, on the appropriateness of the evacuation policy." Both of the courts below found that the Ennis and Burling memoranda are not themselves "probative of military necessity" (J.A. 144; see also J.A. 59). If the statute of limitations was ever tolled, the tolling ended with publication in the late 1940s of the Ringle, Fly, and Hoover documents that Ennis and Burling discuss, not the later publication of the Ennis and Burling memoranda (see J.A. 145-146). In any event, disclosure of the Ennis and Burling memoranda actually revealed nothing new, for it "long" had been "apparent" that the government knew of, but did not present to this Court, the Ringle, Fly, and Hoover documents (see J.A. 146; U.S. Br. 42-43 n.36). On these more than ample grounds, both courts below recognized that the alternative theory to which respondents have retreated will not work. /20/ Amici likewise rely almost exclusively on reasoning other than that used by the court below. For example, amici Korematsu, et al., argue (at 17) that the claims in this case should be found timely for the same reasons that the district courts in their coram nobis cases concluded that laches did not preclude their petitions. Yet amici concede (ibid.), as they must, that the statute of limitations issue in this case "differs from the equitable laches defense in the coram nobis cases." In any event, amici's tolling theory apparently is predicated on the government's supposed violation of a prosecutorial "duty to produce exculpatory evidence" (id. at 18), but tolling on that theory plainly could not continue after such evidence was in fact revealed, which in this case occurred decades ago. And, to the extent that amici's tolling theory might instead be keyed to discovery of alleged direct evidence of government misconduct, such as the Ennis and Burling memoranda, the theory is the same as respondents' and equally without merit. /21/ Amici California and Hawaii suggest (at 5) two "alternative grounds" for finding the complaint in this case timely. One such ground (Calif. Br. 24-26) is just the same as respondents' argument about the first draft of the Final Report and is equally meritless (see pp. 10-13, supra). The other is a remarkable suggestion (Calif. Br. 14-23) that the statute of limitations was tolled until Congress could be said to have repudiated the "military necessity" rationale even "if the government did not mislead this Court in the wartime cases." This suggestion of course forsakes all pretense that this case involves the doctrine of fraudulent concealment. It stands in stark derogation of the principle that conditions on the waiver of sovereign immunity must be strictly construed, since it would apply against the United States a non-fraudulent-concealment tolling theory that applies to no other litigant. Cf. Kendall v. United States, 107 U.S. 123, 125 (1882). 6. Finally, we demonstrated in our opening brief (at 49-50) that, if the court of appeals was right in holding that an "authoritative statement" was needed to start the running of the statute of limitations, it came in 1976, not in 1980. Respondents counter by asserting that the President in 1976 admitted only an "honest error of judgment" (Resp. Br. 41), whereas Congress in 1980 determined that "the time for * * * remedies had clearly come" (id. at 42). That assertion misstates the significance of Congress's 1980 action, which left the question of remedies for ultimate legislative resolution (see 50 U.S.C. App. 1981 note Section 4; see also, e.g., H.R. 442, 100th Cong., 1st Sess. (1987)). /22/ Moreover, there is no conceivably relevant difference between a confession of "honest" error and the confession of "dishonest" error that respondents apparently would require, nor did the 1980 legislation remotely suggest any such "dishonest" error. As these strained attempts to support it show, the theory of the court of appeals falls of its own weight. See also U.S. Br. 50 n.42. For the foregoing reasons and those given in our opening brief, the judgment of the court of appeals should be vacated with directions to transfer the appeal to the Federal Circuit, or reversed on the merits. Respectfully submitted. CHARLES FIRED Solicitor General MARCH 1987 /1/ The two policies could be reconciled by bifurcating appeals in mixed cases, but neither we nor respondents believe that Congress intended that form of reconciliation. Pet. 13 n.14; U.S. Br. 17-19 n.12; Resp. Br. 13-14 n.8. /2/ Respondents' claim of support for their analysis in this Court's decision in United States v. Mottaz, No. 85-546 (June 11, 1986), is particularly wide of the mark. Far from "using the same analysis as employed by the court of appeals here" (Resp. Br. 13), the Court explicitly declined to reach the "question of how an appeal raising both issues committed to the Federal Circuit's jurisdiction and issues outside its jurisdiction is to be treated" (Mottaz, slip op. 14 n.11). /3/ Indeed, the former policy was part of the very impetus for creation of the Federal Circuit. The latter policy, by contrast, appears to be one that came into play only because the jurisdictional provisions of the FTCA and the Little Tucker Act are both contained in 28 U.S.C. 1346, and the particular way in which various bills were drafted (see U.S. Br. 23-24 nn.16-21) made it necessary to clarify that some but not all Section 1346 claims would give rise, by themselves, to exclusive Federal Circuit jurisdiction. /4/ See, e.g., Industrial Innovation and Patent and Copyright Law Amendments: Hearings on H.R. 6033, H.R. 6934, H.R. 3806, H.R. 2414 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 96th Cong., 2d Sess. 759-762 (1980) (testimony of Benjamin L. Zelenko, Chairman, ABA Special Committee on Coordination of Federal Judicial Improvements); Court of Appeals for the Federal Circuit -- 1981: Hearing on H.R. 2405 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 97th Cong., 1st Sess. 69-95 (1981) (statement and testimony of James W. Geriak, ABA) (hereinafter 1981 House Hearings); id. at 110-112, 421-427 (testimony and statement of Benjamin L. Zelenko, Committee to Preserve the Patent Jurisdiction of the U.S. Court of Appeals); id. at 112-152 (statement and testimony of Sidney Neuman and statement on behalf of Bar Association of the Seventh Circuit); id. at 250-252, 263-264, 267-268, 271, 296-297 (letters); id. at 428-443 (statement of George W. Whitney, ABA). /5/ Respondents' bald assertion that "Congress * * * clearly viewed tort, tax, and quite title cases ('except' clause cases) in a special category, and therefore expressly withheld appellate jurisdiction over all such cases from the Federal Circuit" (Resp. Br. 16) is, we submit, conclusively answered by our opening brief. See also J.A. 95-98. Indeed, the assertion that Congress regarded all tort cases as "'foreign' to the Federal Circuit" (Resp. Br. 14) is easily disproven. Consider a case against the government raising both patent claims cognizable under 28 U.S.C. 1338 and business tort claims cognizable under the FTCA. The appeal in such a case would lie in the Federal Circuit under 28 U.S.C. 1295(a)(1). /6/ See Red. R. Civ. P. 12(h)(3); Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 1.S. 694, 702 (1982); Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 740 (1976); Pacyna v. Marsh, No. 84-1706 (Jan. 21, 1986) (order) (remanding for transfer to Federal Circuit even though jurisdictional issue had not been raised in court of appeals); Ballam v. United States, No. 84-1750 (Jan. 21, 1986) (order) (same); Chula Vista City School District v. Bennett, No. 85-833 (Jan. 27, 1986) (order) (same). But see Squillacote v. United States, 747 F.2d 432 (7th Cir. 1984), cert. denied, 471 U.S. 1016 (1985). /7/ We do not repeat here the discussion from our reply memorandum, but we note one new misstatement in respondents' brief. Apparently confusing another brief (see U.S. Reply Memo. 5 n.3; J.A. 5 (docket entry of 1/17/86)) with our petition for rehearing, respondents claim that our petition for rehearing stated that the D.C. Circuit had jurisdiction (Resp. Br. 20). Our petition for rehearing (at 1) in fact stated that "the panel's decision infringes on the exclusive jurisdiction of the Federal Circuit." /8/ If respondents could control appellate jurisdiction by indicating that they sought to change the existing law that unequivocally bars their claims, then every litigant who wishes to control appellate jurisdiction could do the same, and the notion of firvolousness would lose all meaning. We submit that Congress did not intend that result (see U.S. Br. 27). /9/ "Korematsu Br." refers to the brief of amici curiae Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui. "Calif. Br." refers to the brief of amici curiae the States of California and Hawaii. "ACLU Br." refers to the brief of amici curiae the American Civil Liberties Union, ACLU of Southern California, ACLU of the National Capitol Area, and American Jewish Congress. "AFSC Br." refers to the brief of amici curiae the American Friends Service Committee, the Board of Church and Society of the United Methodist Church, the United Church Board for Homeland Ministries of the United Church of Christ, and the American Jewish Committee. /10/ Respondents scoff at our "incredible" description of the government's wartime arguments (Resp. Br. 21) and contend that the government "was hiding the racial reasons" that led to the evacuation (id. at 30). By contrast, amici acknowledge (Korematsu Br. 22-28) that the government's arguments (and the Court's decisions) were indeed based entirely on ancestral, ethnic, and cultural considerations. See also Calif. Br. 8. Despite respondents' protestations, it is impossible to read the briefs and opinions in Hirabayashi and Korematsu and come to any different conclusion. See, e.g., Hirabayashi, 320 U.S. at 100. /11/ As we emphasized in our opening brief (at 33 n.27), the Korematsu Court's attention was pointedly called to the disclaimer by the brief of the ACLU, and the only Justice who relied on the Final Report in his opinion (Justice Murphy, dissenting) used it to attack the evacuation, not to support it (see U.S. Br. 34). /12/ Whether the Court should have rejected the government's judicial notice arguments (see Korematsu Br. 26) is debatable. Compare Tr. 8-12, 15, Korematsu, with Rostow, The Japanese American Cases -- A disaster, 54 Yale L.J. 489, 507, 523 (1945). See generally P. Irons, Justice at War 135-162 (1983). What is beyond rational debate, however, is that the Court was as competent in the 1940s as it is now to reject that argument, and that the government's reliance on the doctrine of judicial notice therefore is not a basis for tolling the statute of limitations. /13/ In any case, it is far from clear whether Ringle disagreed with the government's ultimate judgment about the overriding necessity for prompt action. He believed that the majority of Japanese-Americans were loyal and that the "'Japanese Problem' * * * should be handled on the basis of the individual" (J.A. 229), but he recommended (J.A. 236) that individual loyalty hearings be undertaken as the "means whereby potentially dangerous" Japanese-Americans were identified and isolated, and he ventured no opinion on how quickly such a process could be completed. His report did not even purport to assess "the immediate possibility of an attempt at invasion somewhere along the Pacific Coast" (Hirabayashi, 320 U.S. at 112). Accordingly, Ringle's belief that a "sorting process" was feasible simply did not address the crucial question whether "the nation could afford to * * * take the time to do it" (id. at 107 (Douglas, J., concurring)). /14/ A number of revisions were made to General DeWitt's initial draft before the Final Report was accepted and published by the War Department. See Hirabayashi v. United States, 627 F. Supp. 1445, 1450-1452 (W.D. Wash. 1986), appeals pending, Nos. 86-3853, 86-3887 (9th Cir.). Respondents and amici focus on two of those changes: (1) substitution of the statements that "'no ready means existed for determining the loyal and the disloyal with any degree of safety'" and that "'a positive determination could not have been made'" for the statements that "'(i)t was impossible to establish the identity of the loyal and disloyal with any degree of safety'" and that "'(i)t was not that there was insufficient time in which to make such a determination * * * (but) that a positive determination could not be made'"; and (2) substitution of the statement that "'loyalties were unknown, and time was of the essence'" for the statement that "'security of the Pacific Coast continues to require the exclusion of Japanese from the area now prohibited to them and will continue for the duration of the present war.'" Korematsu Br. 47-48; see also Resp. Br. 29. These changes were made so that it would be clear that the government did not believe that all Japanese-Americans needed to be excluded from the West Coast for the duration of the war. That clarification was necessary because, as the Final Report was being drafted, the War Department was taking the first steps to establish a program to end the mass exclusion of Japanese-Americans. See Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 214, 222-223 (1982) (hereinafter Personal Justice Denied); see also J.A. 116-118. These revisions of the Final Report paralleled a contemporaneous clarification of the government's position by means of supplemental memorandum filed with the Court in Hirabayashi. Certain statements in the government's main brief (at 61-63) had been taken as an assertion "that no hearing could determine whether a given individual was loyal or not" (Appellant's Reply Brief at 13). In response, the government filed a supplemental memorandum stating: "Our position is not that hearings are an inappropriate method of reaching a decision on the question of loyalty. * * * It is submitted, however, that in the circumstances * * * this method was not available to solve the problem which confronted the country." Memorandum for the United States at 1-2, Hirabayashi. /15/ Respondents and amici apparently believe that General DeWitt alone made the judgment that evacuation of Japanese-Americans from the West Coast was necessary, and that a report that did not reflect his personal views therefore must have been misleading. See, e.g., ACLU Br. 4. The decision in question, however, was not made by General DeWitt alone, but rather at the highest levels of government. See Personal Justice Denied 72-86. Indeed, General DeWitt was advised early on that his personal views were at odds with those of his superiors, and that the government's reason for the evacuation was that "'we thought the front was immediate (and) (w)e couldn't sort them out immediately.'" Hirabayashi, 627 F. Supp. at 1453 (quoting transcript of January 18, 1943, telephone conversation between General DeWitt and Assistant Secretary of War McCloy). According to Personal Justice Denied 222, the first draft of the Final Report was edited precisely because McCloy considered it "DeWitt's attempt to talk past his War Department superiors to politicians and the public." /16/ Remarkably, amici simultaneously argue that quotations of General DeWitt in materials publicly available 40 years ago make it "evident" that the "sole predicate" for the evacuation was his "unbridled racism" (ACLU Br. 15-17), and (id. at 7-9) that the statute of limitations was tolled because of "a conspiracy" to cover up such racial animus, as supposedly is demonstrated by the revision of the Final Report. /17/ In this, the situation addressed in Hirabayashi and Korematsu differs entirely from that in United States v. Pacific R.R., 120 U.S. 227 (1887), on which respondents rely. In that case property had been destroyed by a retreating Union army in order to impede the advance of Confederate forces. This Court described that kind of loss as "'occasioned, not wilfully, but through necessity and by mere accident,'" and distinguished it from a loss "'done by the state deliberately and by way of precaution'" (120 U.S. at 234-235). "(P)roperty injury or destroyed during war," the Court then held, is exempt from just compensation requirements when its loss is merely indicental to "the operations of armies in the field, or (to) measures necessary for their safety and efficienty," but no such exemption exists "where property of loyal citizens is taken for the service of our armies" (id. at 239). Contrary to respondents' apparent suggestion, the distinction thus drawn in Pacific R.R. did not create "rigid rules * * * to distinguish compensable losses from noncompensable losses," and left "(e)ach case (to) be judged on its own facts" with respect to which of the paradigms that the Court described it most closely approached. United States v. Caltex, Inc., 344 U.S. 149, 156 (1952). Compare, e.g., United States v. Russell, 80 U.S. (13 Wall.) 623 (1871), with, e.g., Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851). /18/ Respondents' assertion (at 35-36) that the Attorney General's construction of the 1948 Act in Claim of Mary Sogawa, 1 Adj. Att'y Gen. 126 (1950), "confirm(s) Congress' belief that military necessity absolved the government from any Takings liability" seriously misreads the Sogawa decision. In Sogawa, the Attorney General concluded that what the Act did not permit was compensation on the theory that claimants' evacuation "had constituted an actionable wrong to their persons, entitling them to relief on the analogy of the law of tort damages" (id. at 131). That the evacuation could not be considered tortious "in the teeth of * * * Kor(e)matsu" (id. at 134) hardly undermines the recoverability of just compensation on a takings theory. /19/ Respondents do suggest (Resp. Br. 47) that "the purposes of a statute of limitations are (not) contravened by this suit" because "(t)he evidence * * * has not been lost," but, even aside from their dubious premise (see, e.g., Personal Justice Denied 118-119), the applicability of a statute of limitations does not turn on ad hoc inquiry by the courts with respect to the staleness of a particular case. "These enactments are statutes of repose" that "represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time." United States v. Kubrick, 444 U.S. 111, 117 (1979). /20/ Respondents, in passing, attempt to construct other alternative theories in support of the judgment below. For example, they argue (at 45-46) that their delay in pressing their claims may be "reasonable()" because "(t)hey were consistently advised that there was no legal right of action against the United States." If that is true, respondents appear to have received bad advice (see U.S. Br. 46 & n.38 (quoting Rostow, supra, 54 Yale L.J. at 533)), but in any event the argument that a putative plaintiff can be excused from the statute of limitations because he has been "told that he does not have a case" was rejected by this Court in United States v. Kubrick, 444 U.S. at 124. Respondents also argue (at 47-49) that the government should be estopped from raising the statute of limitations -- a suggestion that both courts below correctly rejected. See J.A. 49 n.53, 137-138 n.22. Finally, respondents offer a pro forma argument (at 49) that disputed factual matters make dismissal of their complaint inappropriate. The district court, however, correctly held (J.A. 156) that "(t)here are no disputes about material facts" relevant to the statute of limitations issue. /21/ Other amici make the same argument accompanied by an assertion (ACLU Br. 4) that "ordinary principles of fraudulent concealment" make the claims in this case timely. They dramatically contend (id. at 29) that "the government blatantly lied to the Court when it knew there was no 'military necessity'" for the evacuation and that respondents "had a claim only when they learned of this deception." Amici assert (id. at 38) that respondents' claims did not accrue until "public release of the documents indicating the government's fraud on this Court." See also AFSC Br. 7-8. Once more, however, the rejection of this "alternative" by the courts below was well founded. Respondents for their taking claims must rely on "concealed" evidence, not evidence of "concealment," to establish "the specific wrong complained of" and "the gravamen of the action." Wood v. Carpenter, 101 U.S. 135, 138 (1879). Accordingly, even if there were merit (which there is not) to amici's contention that materials disclosed in the 1980s tend to show government misconduct, the statute of limitations on respondents' taking claims still would have been triggered 30 or more years earlier, when all of the evidence probative of military necessity became available. /22/ Indeed, the significance that respondents ascribe to the 1980 legislation establishing the Commission could far more plausibly be attributed to the 1948 Evacuation Claims Act. See pp. 14-15, supra; see also U.S. Br. 38 n.31.