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 Brief for the United States PARTIES TO THE PROCEEDING Respondents are William Hohri; Hannah Takagi Holmes; Chizuko Omori, individually and as representative for Haruko Omori; Midori Kimura; Merry Omori; John Omori, individually and as representative for Juro Omori; Gladyce Sumida; Kyoshiro Tokunaga; Tom Nakao; Harry Ueno; Edward Tokeshi; Kinnosuke Hashimoto; Nelson Kitsuse, individually and as representative for Takeshi Kitsuse; Eddie Sato; Sam Ozaki, individually and as representative for Kyujiro Ozaki; Kumao Toda, individually and as representative for Suketaro Toda; Kaz Oshiki; George R. Ikeda; Theresa Takayoshi, individually and as representative for Tomeu Takayoshi; and the National Council for Japanese American Redress. TABLE OF CONTENTS Parties to the Proceeding Opinions below Jurisdiction Statutes and Presidential Proclamation Involved Question Presented Statement: A. Historical background B. Proceedings below Summary of argument Argument: I. Exclusive jurisdiction over the appeal in this case lay in the United States Court of Appeals for the Federal Circuit A. The Federal Circuit has exclusive jurisdiction over all nontax Tucker Act appeals B. Even if the Federal Circuit lacks jurisdiction over appeals in mixed Tucker Act/Federal Tort Claims Act cases, this is not such a case II. Respondent's Takings Clause claims are barred by the statute of limitations A. The statute of limitations on respondents' Takings Clause claims was never tolled 1. The government did not mislead this Court while defending the evacuation. 2. The holdings in Hirabayashi and Korematsu did not justify a delay in bringing Takings Clause claims B. If the statute of limitations was ever tolled, the tolling ended more than six years before this action was filed 1. There is no plausible reason why respondents could not have asserted their claims many years ago 2. If an official statement concerning the evacuation was necessary to start the running of the statute of limitations, it came in 1976 Conclusion Appendix OPINIONS BELOW The majority and dissenting opinions of the court of appeals panel (J.A. 13-81) are reported at 782 F.2d 227. The order of the court of appeals denying rehearing en banc and the accompanying opinions (J.A. 83-107) are reported at 793 F.2d 304. The opinion of the district court (J.A. 109-156) is reported at 586 F. Supp. 769. JURISDICTION The judgment of the court of appeals was entered on January 21, 1986. A petition for rehearing with suggestion for rehearing en banc was denied on May 30, 1986 (J.A. 82-84). On August 13, 1986, Justice White extended the time within which to file a petition for a writ of certiorari to and including September 27, 1986. The petition for a writ of certiorari was filed on September 26, 1986, and was granted on November 17, 1986. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTES AND PRESIDENTIAL PROCLAMATION INVOLVED The texts of relevant statutes and of Presidential Proclamation No. 4417, 41 Fed. Reg. 7741 (1976), are set out in App., infra, 1a-6a. QUESTIONS PRESENTED 1. Whether the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction under 28 U.S.C. 1295(a)(2) over the appeal in a case brought under both the Tucker Act and Federal Tort Claims Act (FTCA); and, if not, whether the Federal Circuit nonetheless has exclusive jurisdiction when the FTCA claim is frivolous because plaintiffs never filed an administrative claim as required by 28 U.S.C. 2675(a). 2. Whether Takings Clause claims brought by Japanese-Americans and resident Japanese aliens for losses incurred during World War II are barred by the six-year statute of limitations (28 U.S.C. 2401). STATEMENT A. Historical Background 1. Following the bombing of Pearl Harbor, the United States Government took a number of actions relating to military security and protection against espionage and sabotage. /1/ Among the steps taken were the issuance of two executive orders by President Roosevelt. On February 19, 1942, he issued Executive Order No. 9066, 7 Fed. Reg. 1407 (J.A. 259-260), which declared that "(t)he successful prosecution of the war requires every possible protection against espionage and against sabotage" and authorized "the Secretary of War, and the Military Commanders whom he may from time to time designate," to define military areas from which "any or all persons may be excluded." Executive Order No. 9066 further authorized the Secretary of War to enforce exclusion orders through the use of federal troops and agencies, and directed executive departments and federal agencies to assist the Secretary by furnishing food, clothing, shelter, medical aid, and other needed supplies and equipment. /2/ On March 18, 1942, President Roosevelt issued Executive Order No. 9102, 7 Fed. Reg. 2165, which created the War Relocation Authority in order to "effectuate a program for the removal, from the areas designated from time to time by the Secretary of War or appropriate military commander under the authority of Executive Order No. 9066 of February 19, 1942, of the persons or classes of persons designated under such Executive Order, and for their relocation, maintenance, and supervision." Three days later, on March 21, Congress made it a crime to "enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War." Act of Mar. 21, 1942, ch. 191, 56 Stat. 173 (codified at 18 U.S.C. (Supp. II 1942)) 97a, recodified at 18 U.S.C. (1952 ed.) 1383, repealed, Act of Sept. 14, 1976, Pub. L. No. 94-412, Section 501(e), 90 Stat. 1258 (1976)). /3/ Congress found that the need for such legislation "arose from the fact that the safe conduct of the war requires the fullest possible protection against either espionage or sabotage to national defense material, national defense premises, and national defense utilities" (H.R. Rep. 1906, 77th Cong., 2d Sess. 2 (1942)). Beginning on March 24, 1942, and over the next four months, Lt. General John L. DeWitt, Commanding General of the Western Defense Command, issued a series of 108 Civilian Exclusion Orders, directing the evacuation from the West Coast and resettlement of persons of Japanese ancestry, whether aliens or citizens. See Ex parte Endo, 323 U.S. 283, 288 (1944). By August 1942, some 92,000 persons had been evacuated to assembly centers, from which they were eventually moved to relocation camps. Ultimately, some 120,000 persons were relocated. See J.A. 114-115; 50 U.S.C. App. 1981 note Section 2(a)(1). /4/ In December 1944 the War Department rescinded the general exclusion order; in September 1945 all individual exclusion orders were revoked. The last relocation camp was closed by March 1946. See J.A. 118. 2. Recognizing that "(t)he evacuation orders gave the persons affected desperately little time in which to settle their affairs," that the "safeguards that were designed to prevent undue loss * * * were never entirely successful," and that "the losses have been heavy" (Letter from J.A. Krug, Secretary of the Interior, to Joseph W. Martin, Jr., Speaker of the House (Mar. 17, 1947), reprinted in H.R. Rep. 496, 82d Cong., 1st Sess. 1, 2 (1951)), Congress enacted the Japanese-American Evacuation Claims Act of 1948, ch. 814, 62 Stat. 1231 (codified as amended at 50 U.S.C. (& Supp. II) App. 1981-1987). More than 26,000 claims for aggregate payment of $148,000,000 were filed under the Act, and approximately $37,000,000 was paid. See Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 118 (1982) (hereinafter Personal Justice Denied). In 1976 President Gerald R. Ford formally proclaimed that all authority conferred by Executive Order No. 9066 had terminated on December 31, 1946, when the end of World War II was proclaimed. In his proclamation President Ford stated that the evacuation had been one of "our national mistakes"; that the issuance of Executive Order No. 9066 was "a sad day in American history"; that the evacuation and detention were a "setback to fundamental American principles"; that "we should have known then (that) not only was the evacuation wrong, but Japanese-Americans were and are loyal Americans"; that this "long-ago experience" was a "tragedy"; and that "this kind of action (should) never again be repeated." Proclamation No. 4417, 41 Fed. Reg. 7741 (1976). In 1980 Congress established the Commission on Wartime Relocation and Internment of Civilians (see 50 U.S.C. App. 1981 note). Congress found that "no sufficient inquiry has been made" into the detention and relocation of approximately 120,000 civilians pursuant to Executive Order No. 9066 and the relocation of approximately 1000 civilians from the Aleut and Pribilof Islands (50 U.S.C. App. 1981 note Section 2(a)). Accordingly, the Commission was established "to gather facts to determine whether any wrong was committed" and "provide a basis for appropriate recommendations (S. Rep.96-751, 96th Cong., 2d Sess. 1, 3 (1980)). The primary duty of the Commission was to "review the facts and circumstances surrounding Executive Order Numbered 9066" and to submit a written report to Congress (50 U.S.C. App. 1981 note Section 4). The Commission's report, Personal Justice Denied, is dated December 1982 and was publicly released in February 1983. /5/ B. Proceedings Below 1. On March 16, 1983, respondents, an organization of Japanese-Americans and 19 citizens or resident aliens of Japanese ancestry who were involved in the relocation program under Executive Order No. 9066, filed suit in district court against the United States. They requested certification of a class consisting of approximately 120,000 Japanese-Americans and resident Japanese aliens, or their descendants, /6/ and alleged 22 causes of action arising out of their evacuation and internment. J.A. 157-215. Among the causes of actions alleged were claims under the Takings Clause of the Fifth Amendment (Count III, J.A. 207-208), tort claims (Counts XVII-XX, J.A. 212-213), and allegations of breach of contract and fiduciary duty (Counts XXI-XXII, J.A. 213-214). /7/ Respondents requested an award of damages for each cause of action for each class member (J.A. 215). Jurisdiction was alleged under 28 U.S.C. 1331, 1346(a)(2), and 1346(b) and other provisions (J.A. 162). /8/ On motion by the government to dismiss for lack of subject-matter jurisdiction (Fed. R. Civ. P. 12(b)(1)), the district court dismissed the suit in its entirety. The court held that sovereign immunity barred all of the claims except for those that would be pursued under either the Tucker Act, 28 U.S.C. 1346(a)(2), 1491, or the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq. J.A. 128-131, 153-154. The court held that respondents' tort claims were barred by the FTCA's two-year statute of limitations (28 U.S.C. 2401(b)) and by respondents' failure to exhaust their administrative remedies as required by 28 U.S.C. 2675(a) (J.A. 151-153). The court dismissed the Breach-of-contract claim on the basis of the statute of limitations (J.A. 147-149), and the breach-of-fiduciary-duty claim on the ground that no fiduciary duty existed (J.A. 149-150). The district court held that respondents' taking claims stated a cause of action against the United States under the Tucker Act but were barred by the six-year statute of limitations (28 U.S.C. 2401(a)). J.A. 136-147. Respondents argued before the district court that the statute of limitations was tolled because the government had fraudulently concealed information that was essential to their Takings Clause claims. Respondents did not allege that they had not known of their property losses, but rather that the government had concealed memoranda suggesting the absence of military necessity for the evacuation of Japanese-Americans on the West Coast, and that any suit brought under the Takings Clause after the war would have "foundered upon the government's defense that evacuation and internment were required by military necessity" (J.A. 137-139). Respondents argued that the concealed evidence was first revealed in Personal Justice Denied, and that, accordingly, the statute of limitations did not begin to run until that report was released in 1983. Specifically, respondents alleged that documents written during the war called into question the military necessity for the evacuation. The first of these was a memorandum (J.A. 226-237) prepared in January 1942 by Lt. Commander Kenneth Ringle, of the Los Angeles Branch of the Office of Naval Intelligence, in which he offered his opinion that the "Japanese Problem" had been magnified out of proportion, that 75% of Japanese-Americans were loyal and a majority of resident Japanese aliens "at least passively loyal to the United States," and that the "potentially dangerous element" could be individually identified. J.A. 227-229. Respondents also referred to two memoranda written in 1944 by FCC Chairman James Fly and FBI Director J. Edgar Hoover (see J.A. 238-243 (Fly); C.A. App. 273, 275, n.53 (summarizing Hoover)), which questioned certain findings concerning shore-to-ship communications stated in General DeWitt's Final Report. /9/ The district court found that "the events surrounding the evacuation and internment have been subjected to intense scrutiny over the years and have produced a lengthy literature" and that the Ringle, Fly, and Hoover memoranda had been published "at least as early as 1949" and in Martin Grodzins, Americans Betrayed: Politics and the Japanese Evacuation (1949). J.A. 141-142 & n.26. /10/ The district court concluded that, because "(t)hese publications lay out almost all of the facts alleged by (respondents), along with many others," respondents could not "claim that the facts underlying their suit were discovered by the Commission on Wartime Relocation and Internment of Civilians. * * * (A) suit could have been filed long ago." J.A. 141-142. 2. Respondents appealed to the United States Court of Appeals for the District of Columbia Circuit. A divided panel of that court held that it had jurisdiction to hear the appeal and reversed the dismissal of the Takings Clause claims. With respect to the jurisdictional question, the majority held that, since respondents had alleged claims under both the Tucker Act and the FTCA, the "except" clause in 28 U.S.C. 1295(a)(2) deprived the Federal Circuit of jurisdiction (J.A. 32-35). Although the majority recognized that the Federal Circuit's jurisdiction remains exclusive when the FTCA claims in a complaint are frivolous (J.A. 33 n.27), and although the court upheld dismissal of those claims (J.A. 44-45 & n.48), the majority held that the FTCA claims were not frivolous (J.A. 33 n.27). /11/ Chief Judge Markey of the Federal Circuit, sitting by designation, dissented on the ground that mixed Tucker Act/FTCA cases must be appealed to the Federal Circuit (J.A. 68-74). He also argued that the FTCA claims were "entirely illusory" and frivolous (J.A. 70, 74). On the merits, the court of appeals reversed the district court's dismissal of respondents' Takings Clause claims, holding that the statute of limitations had been tolled until 1980. The majority began with the premise that in Korematsu v. United States, supra, and Hirabayashi v. United States, supra, at least partly as a result of government concealment, this Court had established a "virtually insurmountable presumption of deference to the judgment of the military authorities" that evacuation of all Japanese-Americans was justified by military necessity (J.A. 18, 22-23, 27). The court of appeals inferred that, because of this standard of deference, any claim for just compensation brought after the war would have been barred on the ground that the taking was justified by military necessity and would not have "survive(d) a threshold motion to dismiss" (J.A. 53 n.57). The majority agreed with the district court that the evidence concealed during the war had been in the public domain since 1949 and confirmed that evidence published in the 1940s "should have alerted (respondents) to the need to conduct further inquiries into the factual basis of their claims" (J.A. 55 & n.60; see also J.A. 59). But the majority rejected, as resting on a "legally defective premise," the district court's conclusion that the statute of limitations began to run at that time (J.A. 55). Instead, the majority held that "(g)iven the constitutional underpinnings of the presumption of deference articulated by the Court * * * nothing less than an authoritative statement by one of the political branches, purporting to review the evidence when taken as a whole, could rebut the presumption articulated in Korematsu" (J.A. 56; see also J.A. 59). The majority found such an "authoritative statement" in the 1980 Act creating the Commission on Wartime Relocation and Internment of Civilians, by which "Congress finally removed the presumption of deference to the judgment of the political branches," and "the statute of limitations began to run" (J.A. 60). Respondents' Taking Clause claims, filed in 1983, were therefore timely. Chief Judge Markey again dissented, noting that, "(w)hatever may be made of the argument that suit would be fruitless in view of Hirabayashi and Korematsu, that argument collapsed entirely about 1950," and pointing out that the district court's finding that respondents had sufficient evidence to file a complaint 35 years ago "has not truly been contested" (J.A. 77). Chief Judge Markey found "no plausible support in the record" for the "bald assertion that 'only a statement by one of the political branches could have rebutted the presumption of deference' due the military authorities" (J.A. 78). A sharply divided court denied rehearing en banc. The five dissenters expressed "complete agreement" with Chief Judge Markey's opinion on both jurisdictional and statute of limitations ground (J.A. 85). They added that the majority's insistence on an authoritative statement from a political branch before Takings Clause claims could be brought was based on a misinterpretation of Hirabayashi and Korematsu, since "(n)either case holds, or even remotely suggests, that military necessity also required that the internees' property be taken" (J.A. 91). Moreover, even if a statement by a political branch was required, the dissenters argued that it was made by President Ford in 1976, a date that was "inconveniently early() for the panel majority's purposes" (J.A. 89 n.1). Finally, assuming that they were incorrect on every other point, the dissenters argued that "the statement by one of the 'war-making branches' the panel majority requires could have been extracted through litigation," so that "this suit could have been brought successfully at any time within the past forty years" (J.A. 93). In a separate statement, the panel majority defended its opinion (J.A. 103-107). SUMMARY OF ARGUMENT I. The Federal Circuit, not the D.C. Circuit, had jurisdiction over this appeal. The Federal Courts Improvement Act was intended to centralize all nontax Tucker Act appeals in the Federal Circuit, even when the jurisdiction of the district court was based only "in part" on the Tucker Act. The "except clause" of 28 U.S.C. 1295(a)(2) does not state an exception to that policy, but rather lists claims that are not an independent basis for Federal Circuit jurisdiction. When mixed with Tucker Act claims that provide a basis for Federal Circuit jurisdiction, "except clause" claims do not act as a bar to that jurisdiction. Moreover, even if the court below was right in holding that appeals in mixed Tucker Act/FTCA appeals must be heard by the regional court of appeals rather than the Federal Circuit, this was not such a case. Frivolous claims in complaints are to be disregarded in applying Section 1295(a)(2), and the FTCA claims in the complaint here were frivolous because respondents ignored the hornbook principle, followed by every federal court of appeals, that the filing of an administrative claim is a nonwaivable, jurisdictional prerequisite to pursuing an FTCA action. II. The statute of limitations on respondents' Takings Clause claims was never tolled at all and, even if tolled, expired more than six years before this action was brought. This Court's decisions in Hirabayashi and Korematsu, which supposedly created a virtually insurmountable rule of deference to military decisions in connection with the relocation program, were not the result of government concealment. Further, even if those cases had been wrongly decided as a result of government concealment, they would not have prevented a claim under the Takings Clause. Those decisions were carefully limited, only upholding a curfew and upholding the evacuation (not "internment"). Moreover, the government at the time recognized that the evacuation did not require the taking of property. Assuming that the statute of limitations was nonetheless tolled, any tolling ended around 1950, with the disclosure of the arguably relevant materials that had not been disclosed during the war. By insisting that only a governmental admission of wrongdoing would start the running of the statute, the court of appeals has all but done away with the statute of limitations as a distinct defense. If, somehow, it was correct in that action and an authoritative statement by a political branch was required, it came in 1976, when President Ford proclaimed that the evacuation had been wrong. Thus, the complaint, filed more than six years after that event, was time barred even if the court of appeals was correct in all but the last point of its reasoning. ARGUMENT I. EXCLUSIVE JURISDICTION OVER THE APPEAL IN THIS CASE LAY IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT The complaint in this case asserted district court jurisdiction under both the Little Tucker Act, 28 U.S.C. 1346(a)(2), and the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b). The court of appeals recognized that cases raising only nontax Tucker Act claims can be heard on appeal only in the Federal Circuit. Construing the language of 28 U.S.C. 1295(a)(2), however, it held further that a mixed Tucker Act/FTCA case, in which the FTCA claim is not frivolous, must be appealed to the regional court of appeals. Holding that the FTCA claim in this case was not frivolous, the court found that it had jurisdiction. Contrary to the holding of the court of appeals, all cases in which the jurisdiction of the district court "was based, in whole or in part" (28 U.S.C. 1295(a)(2)), on a nontax Tucker Act claim are within the exclusive jurisdiction of the Federal Circuit, no matter what other claims have been joined with the Tucker Act claim in the complaint, and whether or not those other claims are frivolous. Even if we are wrong on that point, the FTCA claims in this case are frivolous. A. The Federal Circuit Has Exclusive Jurisdiction Over All Nontax Tucker Act Appeals 1. We start, as did all of the opinions below (J.A. 32, 72, 96-97), with the proposition that Congress, through the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25, created the Federal Circuit in order to provide a single forum for the uniform adjudication of issues thought by Congress to require centralized treatment at a level below the Supreme Court. See S. Rep. 97-275, 97th Cong., 1st Sess. 2-4 (1981). Among the matters thought to require such uniform treatment were non-tax claims arising under the Tucker Act, 28 U.S.C. 1346(a)(2), 1491. Trial court jurisdiction over Tucker Act claims was assigned by Section 1491 to the new United States Claims Court, from which all appeals must be taken to the Federal Circuit under 28 U.S.C. 1295(a)(3). Concurrent jurisdiction over Tucker Act claims for $10,000 or less was left in the federal district courts by Section 1346(a)(2), but Congress's desire to centralize Tucker Act appeals in the Federal Circuit was realized by placing in that court exclusive jurisdiction over appeals of the district courts' Section 1346(a)(2) decisions. Specifically, Congress provided (28 U.S.C. 1295(a)(2)) that the Federal Circuit has exclusive jurisdiction of an appeal from a final decision of a district court of the United States * * * if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title, except that jurisdiction of an appeal in a case brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is founded upon an Act of Congress or a regulation of an executive department providing for internal revenue shall be governed by sections 1291, 1292, and 1294 of this title. There is no dispute that this statute was intended to centralize Tucker Act appeals in the Federal Circuit, or that -- by virtue of the statutory phrase "in whole or in part" -- the Federal Circuit will sometimes have exclusive jurisdiction over appeals including non-Tucker Act issues that would have been decided by the regional courts of appeals had they not appeared in the same case as a Tucker Act claim. /12/ When adjudicating those issues, the Federal Circuit applies the law of the regional circuit of the district court from which the case came. /13/ The Federal Circuit's status as "a court of limited jurisdiction" (see United States v. Mottaz, No. 85-546 (June 11, 1986), slip op. 14 n.11; H.R. Rep. 97-312, 97th Cong., 1st Sess. 39 (1981)), therefore, means only that it, like other federal courts, is limited to the jurisdiction that Congress has given to it. /14/ 2. The question posed here is whether the "except" clause of Section 1295(a)(2) was intended to enumerate those claims that (alone or together with other claims) absolutely deprive the Federal Circuit of any jurisdiction, or rather simply indicates that Federal Circuit jurisdiction must be based on a portion of Section 1346 not listed in the except clause. We believe the statutory language and legislative history show that the latter interpretation is correct. Section 1295(a)(2) confers exclusive appellate jurisdiction on the Federal Circuit when district court jurisdiction rested "in whole or in part" on 28 U.S.C. 1346, but excepts from that proviso "a case brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) * * * or under section 1346(a)(2)" in connection with the internal revenue. As Chief Judge Markey stated in his dissent below (J.A. 69): A literal reading of the statute makes plain that the "except clause" applies only to cases brought in whole under one of the excepted subsections of Section 1346. The majority improperly reads the "except clause" as though it also contained the broad jurisdictional grant of "in whole or in part," a construction clearly contrary to the literal language of the statute * * * . The legislative history supports Chief Judge Markey's reading of the statute. Although it contains no direct discussion of mixed cases involving both exclusive jurisdiction and "except" clause claims under either Section 1295(a)(1) or 1295(a)(2), /15/ it does not leave us without clues as to what Congress meant by the "except" clause of Section 1295(a)(2). The clearest indication of what Congress intended can be found in the paraphrase of Section 1295(a)(2) in the House report (H.R. Rep. 97-312, supra, at 42), which states that Section 1295(a)(2) gives the Court of Appeals for the Federal Circuit jurisdiction of any appeal from a trial court where the jurisdiction of the district court was based, in whole or in part, on section 1346 of title 28, United States Code, except 1346(a)(1) and (e) (tax appeals), 1346(b) (Federal Tort Claims), 1346(f) (quiet title actions), or 1346(a)(2) when the claim is founded upon an Act of Congress or a regulation of an executive department providing for internal revenue. The report thus recognizes that the "except" clause merely states an exception to otherwise exclusive Federal Circuit jurisdiction over all Section 1346 cases. While it says that the Federal Circuit does not derive jurisdiction from the presence in a case of FTCA, tax refund, and quiet title claims, it does not suggest (as the court of appeals held) that the Federal Circuit is denied jurisdiction over all such claims, even when they are joined with a Tucker Act (or other) cause of action that would otherwise be heard by the Federal Circuit. Congress in fact considered placing several of the "except" clause claims within the exclusive jurisdiction of the Federal Circuit. There is no indication that in deciding not to do so Congress concluded that their presence in a case, unlike the presence of other unmentioned causes of action, would affirmatively divest the Federal Circuit of jurisdiction even in Tucker Act cases. Eight different bills containing versions of Section 1295(a)(2) were considered by Congress before passage of the Federal Courts Improvement Act. S. 677, 96th Cong., 1st Sess. (1979); S. 678, 96th Cong., 1st Sess. (1979); H.R. 3806, 96th Cong., 1st Sess. (1979); S. 1477, 96th Cong., 1st Sess. (1979); S. 21, 97th Cong., 1st Sess. (1981); H.R. 2405, 97th Cong., 1st Sess. (1981); H.R. 4482, 97th Cong., 1st Sess. (1981); S. 1700, 97th Cong., 1st Sess. (1981). All eight made clear the exclusive jurisdiction of the Federal Circuit over Little Tucker Act appeals. All eight also made clear that, in non-mixed cases, the Federal Circuit would not have jurisdiction over Federal Tort Claims Act appeals or appeals in tax refund cases under 28 U.S.C. 1346(a)(1). Everything else that eventually appeared in the "except" clause, however, was at one time or another proposed to be within the exclusive jurisdiction of the Federal Circuit. Section 1346(e), relating to certain special kinds of tax actions such as wrongful-levy actions (26 U.S.C. 7426) and actions for declaratory judgments of tax-exempt status (26 U.S.C. 7428), now appears within the "except" clause of Section 1295(a)(2). Section 1295(b) as proposed in the original Department of Justice bill (S. 677), /16/ however, would have given the Federal Circuit exclusive jurisdiction over all Section 1346 actions except Section 1346(a)(1) and (b) actions, so these special tax actions would have been reviewed on appeal in the Federal Circuit. Section 1346(f), relating to Quiet Title Act actions, is also now within the "except" clause of Section 1295(a)(2). Yet every bill considered by the 96th Congress, including the two that passed their respective houses, would have given the Federal Circuit exclusive jurisdiction over Quiet Title Act appeals. S. 678 contained an affirmative grant of jurisdiction to the Federal Circuit in Quiet Title Act cases; /17/ the other bills simply omitted the Quiet Title Act from their "except" clauses. S. 677; /18/ H.R. 3806; /19/ S. 1477. /20/ H.R. 3806 and S. 1477 passed their respective houses on September 15, 1980, and October 30, 1979, but neither was acted on in the other chamber before the 96th Congress came to a close. The first bills introduced in the 97th Congress similarly omitted Section 1346(f) from their "except" clauses. S. 21; H.R. 2405; S. 1700. /21/ On April 2, 1981, however, Chief Judge Friedman of the Court of Claims recommended addition of the phrase "or 1346(f)" to the "except" clause of H.R. 2405, and the Department of Justice endorsed that recommendation 27 days later. 1918 House Hearings 26, 213. H.R. 4482, Section 125(a), introduced on September 15, 1981, incorporated Chief Judge Friedman's recommendation and contains the version of Section 1295(a)(2) that is now in force. Finally, the "except" clause of Section 1295(a)(2) now refers to Section 1346(a)(2) claims "founded upon an Act of Congress or a regulation of an executive department providing for internal revenue." That language was absent from S. 677, H.R. 3806 as it passed the House, and S. 1477 as introduced on July 10, 1979. (By the time it was reported out of committee on August 3, 1979, however, S. 1477 had been amended to include internal revenue Tucker Act claims in the "except" clause, and it was the amended version that passed the Senate.) See notes 16, 19 & 20, supra. These changes in the various bills considered by Congress negate any inference that the "except" clause lists types of claims that Congress affirmatively intended to keep away from the Federal Circuit. As Congress gradually chipped away Section 1346 causes of action that were at first considered candidates to be within the exclusive jurisdiction of the Federal Circuit, it added them to the "except" clause along with FTCA claims and tax refund cases. This process of placing each type of claim either within the exclusive jurisdiction of the Federal Circuit or in the statute's "except" clause strongly suggests that Congress conceived of that clause as a list of claims that would not give the Federal Circuit exclusive jurisdiction, not as a list of claims that deprive the Federal Circuit of jurisdiction even in cases including Tucker Act claims. We therefore submit that mixed Tucker Act/FTCA cases, like mixed cases involving the Tucker Act and any other statute, must be appealed to the Federal Circuit in keeping with Congress's purpose to centralize Tucker Act appeals, and that the court below lacked jurisdiction. B. Even If the Federal Circuit Lacks Jurisdiction Over Appeals in Mixed Tucker Act/Federal Tort Claims Act Cases, This Is Not Such a Case Whatever the proper interpretation of Section 1295(a)(2), its jurisdictional consequences are not triggered simply by the citation of one or another statutory reference in a complaint. /22/ Some basis for the claim must exist before it will be recognized in determining which court of appeals has jurisdiction. Otherwise, forum shopping would be rampant. We believe that in determining whether a claim has a sufficient basis to be considered under Section 1295(a)(2), the court should inquire whether the claim is frivolous. /23/ That approach finds support in the legislative history. Congress was quite concerned about forum shopping; in connection with Section 1295(a)(1), it specifically indicated its concern that courts prevent forum shopping by the addition of "immaterial, inferential, and frivolous" patent claims to complaints raising other issues. See, e.g., S. Rep. 97-275, supra, at 19; H.R. Rep. 97-312, supra, at 41; see also 1981 Senate Hearings 249 (testimony of Chief Judge Markey) ("sham pleadings" will not suffice to control appellate jurisdiction); Atari, Inc. v. JS & A Group, Inc., 747 F.2d at 1433-1434 & n.9. There is no reason to suppose that Congress intended a different treatment of frivolous claims under Section 1295(a)(2) than under Section 1295(a)(1). In this case, respondents filed their action in the district court without making any attempt to present a claim to an administrative agency, as required by 28 U.S.C. 2401(b) and 2675. They asserted that the administrative-filing requirement of those Sections could be waived. Yet it is black-letter law, followed by every federal court of appeals, /24/ that "the requirement that an administrative claim be filed before initiating suit is jurisdictional and cannot be waived." 2 L. Jayson, Handling Federal Tort Claims Section 315, at 17-10 (1986) (footnote omitted). In the face of such a settled rule, there is no way that respondents' FTCA claims can be viewed as other than frivolous. There being no nonfrivolous FTCA claim, this was not a mixed case. Thus, even if a genuine mixed case were properly appealable to the regional circuit (which it is not), the Federal Circuit still would have had exclusive jurisdiction over this appeal. Because the court of appeals lacked jurisdiction, this Court should vacate its judgment and remand with directions to transfer the appeal pursuant to 28 U.S.C. 1631 to the Federal Circuit. United States v. Mottaz, slip op. 14 n.11. II. RESPONDENTS' TAKINGS CLAUSE CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS If this Court reaches the merits, the judgment of the court below should be reversed and the case remanded with instructions to affirm the dismissal of the Takings Clause claims. The court of appeals clearly erred in holding timely respondents' suit against the United States seeking compensation for property allegedly lost 40 years earlier as a result of the World War II relocation of persons of Japanese ancestry. We do not dispute that, as President Ford proclaimed in 1976 (Proclamation No. 4417, 41 Fed. Reg. 7741 (1976)), the wartime measures out of which this case arose were "a setback to fundamental American principles" and involved "national mistakes." Nonetheless, like all who have suffered wrongs, respondents were obliged to pursue their claims diligently. The limitations period applicable to a suit against the United States "constitutes a condition on the waiver of sovereign immunity" and, as such, "define(s) the extent of the court's jurisdiction" over a claim. United States v. Mottaz, slip op. 6 (quotation marks and citations omitted); United States v. Kubrick, 444 U.S. 111, 117-118 (1979). The statute of limitations (here, 28 U.S.C. 2401(a)) "must be strictly observed," and may not be interpreted "in a manner that would 'extend the waiver (of sovereign immunity) beyond that which Congress intended'" (Block v. North Dakota, 461 U.S. 273, 287 (1983) (quoting Kubrick, 444 U.S. at 118)). Section 2401(a) purports on its face to bar a civil suit "if the right to bring it first accrued more than six years prior to the date of filing the suit." Crown Coat Front Co. v. United States, 386 U.S. 503, 510 (1967). As to when the right first accrues, the issue is when respondents could, "with honesty, make the necessary allegations to support an action" (id. at 515; see also Finn v. United States, 123 U.S. 227, 232 (1887)). In general, a claim founded on the Takings Clause can be asserted as of "the date * * * the * * * taking occurred." Soriano v. United States, 352 U.S. 270, 277 (1957); see also United States v. Dow, 357 U.S. 17 (1958). Respondents' allegations that a taking "occurred during World War II" (J.A. 137), when their "property (was) lost as a result" of the evacuation and exclusion orders (J.A. 131), seemingly could have been asserted when "it was first clearly apparent" that the government's actions had caused the alleged loss. Todd v. United States, 292 F.2d 841, 844 (Ct. Cl. 1961) (Takings Clause claim based on promulgation of restrictions by Secretary of War accrued when it first became apparent that the restrictions had frustrated the plaintiff's operations). Because respondents must have had knowledge of their "injury (and) its cause" (Kubrick, 444 U.S. at 122) not later than the termination of the relocation program, the six-year statute of limitations on the claims that they now advance ordinarily would have expired sometime between 1948 and 1952. The court of appeals, however, concluded that the government "misled the Supreme Court" when it argued the constitutionality of the evacuation (J.A. 23), and that this Court in Hirabayashi and Korematsu announced a "virtually insurmountable presumption of deference" (J.A. 18) in connection with the relocation program. The court below concluded that the statute of limitations should be tolled until the rule of deference thus announced had been somehow overcome, so that respondents could "survive a threshold motion to dismiss" and thus "advance beyond the pleading stage" (J.A. 53 & n.57). The court concluded that not until 1980, with the creation of the Commission on Wartime Relocation and Internment of Civilians, could respondents have "produced the 'factual basis' of a good faith complaint" (J.A. 53). In all of this reasoning, the court of appeals is demonstrably wrong. A. The Statute of Limitations on Respondents' Takings Clause Claims Was Never Tolled Although the government had in its possession materials about the evacuation that it did not present to this Court while litigating Hirabayashi and Korematsu, those materials did not contradict the government's factual assertions to this Court. The government did not mislead the Court. Furthermore, nothing in the decisions in Hirabayashi v. United States, supra, and Korematsu v. United States, supra, suggests that a Takings Clause claim would have been futile or excuses respondents' failure to bring such an action within six years of the alleged takings. 1. The Government Did Not Mislead This Court While Defending the Evacuation In justifying the evacuation before this Court, the United States made a claim of "military necessity." The "military necessity" of the evacuation was, of course, a conclusion to be drawn or rejected in light of the facts, not a "fact" whose "concealment" might toll the statute of limitations. Although official and unofficial opinion on the subject may have changed since the 1940s, /25/ whether there was military necessity for the evacuation remains a question of opinion and judgment based on the facts, rather than a question of fact. Indeed, the court of appeals recognized that this Court "did not lack for evidence arguing against the military judgment" (J.A. 56). In support of its assertion of "military necessity," the United States could have resorted to two types of arguments -- those looking to ancestral, cultural, and ethnic considerations, and drawing an inference about the likelihood of subversive activity, or those resting on specific conduct alleged to be indicative of past or planned subversive activity. With one exception, /26/ the government's factual claims -- and this Court's -- fell entirely into the former category. See Brief for the United States at 18-32, Hirabayashi; Hirabayashi, 320 U.S. at 90-91, 96-99, 101; Brief for the United States at 11-12, 21-23, 26, 54-55 & n.28, Korematsu; Korematsu, 323 U.S. at 218-219; Personal Justice Denied 50 (footnote omitted) ("(t)he Justice Department, defending the exclusion before the Supreme Court, made no claim that there was identifiable subversive activity"); J. tenBroek, E. Barnhart & F. Matson, supra note 26, at 215-216, 265-266; Rostow, The Japanese American Cases -- A Disaster, 54 Yale L.J. 489, 505, 507 (1945). Allegations of misconduct by the government stem from the fact that, by the time of Korematsu, there was in existence and public circulation a document, General DeWitt's Final Report, that purported to find evidence of subversive activity by Japanese-Americans in certain unidentified shore-to-ship signaling on the West Coast. At that time, the government had in its possession the Fly and Hoover memoranda (see p. 10, supra), which called into question assertions in the Final Report about signaling, and therefore it would have been questionable to cite the Final Report on those points without disclosing the contradictory information. The government, however, expressly disclaimed any reliance on the Final Report insofar as it went beyond the inferential arguments specifically set forth in the brief (Brief for the United States at 11 n.2, Korematsu (emphasis added)): The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944), hereinafter cited as Final Report, is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice, and we rely upon the Fnal (sic) Report only to the extent that it relates to such facts. This explicit dis-incorporation of the more colorful allegations of the Final Report was clearly understood by the other litigants and by the Court. /27/ Although some Department of Justice attorneys had urged a footnote that more specifically indicated why the government limited its reliance on the Final Report (see J.A. 272-276 (Ennis memorandum); J.A. 25), the footnote that actually appeared in the brief was not "ambiguous," as the court below described it (J.A. 25), and it certainly did not amount to a "suppression * * * of the factual weakness" of the report (J.A. 57 n.62). In support of its statements to that effect, the court of appeals claimed that in Korematsu "the majority opinion freely cited to the Final Report" and that, "(f)or the Korematsu majority, DeWitt's statement was the official view of one of the 'war-making branches'" and thus entitled to deference (J.A. 26 & n.20 (citation omitted)). The Korematsu opinion, however, contains not the slightest support for those claims. Consistent with the government's disclaimer, the opinion of the Court cited the Final Report once (323 U.S. at 219 n.2), and there only for the correct proposition that "investigations made subsequent to the exclusion" showed that some evacuees "refused to swear unqualified allegiance to the United States" and that others "requested repatriation to Japan" (id. at 219 (footnote omitted); see J.A. 24 n.19). The Court did not reply on General DeWitt's claims about shore-to-ship signaling by Japanese-Americans. Indeed, the only substantive discussion of the Final Report in Korematsu is found in the dissent by Justice Murphy, who extensively used the Final Report to argue that the evacuation was supported only by racist motives (323 U.S. at 235-239). /28/ Perhaps realizing that the nondisclosure of the Fly and Hoover memoranda really could not amount to fraudulent concealment, because the assertion that they contradicted was one that the government did not make, the court of appeals also found possible fraudulent concealment in the government's failure to announce that its conclusions about the Japanese-American population were not supported by intelligence reports. /29/ Indeed, the court of appeals ultimately acknowledged that its entire theory rested on that failure, for the court left open the possibility that, on remand to the district court, the government might produce "countervailing intelligence data," in which case the district court "would be free to find that the statute of limitations was never tolled in this case" (J.A. 57 n.63). The government, however, made no claim that its conclusions about the Japanese-American population were supported by intelligence reports, and the absence of such a claim by the government was duly noted at the time. See, e.g., Brief for American Civil Liberties Union, Amicus Curiae, at 23, Korematsu; Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court's Korematsu and Endo Decisions, 45 Colum. L. Rev. 175, 191 n.55 (1945). Nor do this Court's opinions in Korematsu and Hirabayashi suggest that the decisions were influenced by a false belief that undisclosed "official intelligence analysis" (J.A. 23) supported its conclusions about the Japanese-American population. /30/ Rather, like the wartime government, this Court squarely based its decisions on what it then perceived as "the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry" (Hirabayashi, 320 U.S. at 101). There is nothing in the Court's opinions to suggest that the Court relied on any assumptions about intelligence analyses that the government never claimed existed. Whether or not one agrees with the government's wartime position that ancestral, ethnic, and cultural background may give rise to a greater likelihood of subversive activity, or with the Court's view in Hirabayashi and Korematsu that a mass evacuation was constitutionally justifiable on the basis of such assertions, neither the government's position nor the Court's decisions relied on intelligence reports or on parts of General DeWitt's Final Report that were contradicted by undisclosed evidence uniquely in the government's possession. The government's factual and legal assertions were sharply contested in the 200-page amicus brief of the Japanese American Citizens League (among others) and in the three dissenting opinions in this Court. But neither controversial assertions of fact, by themselves, nor controversial assertions of law, in any circumstances, constitute fraudulent concealment. Such controversial assertions are all that was present in the litigation of Hirabayashi and Korematsu. 2. The Holdings in Hirabayashi and Korematsu Did Not Justify A Delay in Bringing Takings Clause Claims Even if one assumes that the government committed improprieties that were somehow responsible for the results reached in Hirabayashi and Korematsu, respondents cannot prevail because neither decision foreclosed an action for a taking of property. /31/ To the contrary, in both decisions this Court emphasized the narrowness of its ruling -- which was limited, in Hirabayashi, to sustaining a "curfew order" (320 U.S. at 105) and, in Korematsu, to upholding "temporary exclusion" of Japanese-Americans from a restricted area "as of the time (that the order) was made and when the petitioner violated it" (323 U.S. at 219). /32/ To extrapolate from these carefully limited rulings a conclusion that "the government could have won a takings suit on the claim of military necessity * * * simply by citing Korematsu and moving to dismiss" (J.A. 92 (dissent)) is no small step. The court of appeals sought to justify that step by stating that, "(w)hen the government impinges on property rights in the midst of a military emergency, there is no compensable taking under the Fifth Amendment" (J.A. 55). But the doctrine that, in a military emergency, property can be destroyed without compensation is a narrowly tailored exception to the general rule that "a taking of private property * * * when the emergency of the public service in time of war * * * is too urgent to admit of delay * * * creates an obligation on the part of the government to reimburse." United States v. Russell, 80 U.S. (13 Wall.) 623, 629 (1871). It has been limited almost exclusively to the "extraordinary situation" (United States v. Central Eureka Mining Co., 357 U.S. 155, 182 (1958) (Harlan, J., dissenting)) where property is destroyed "by the operations of armies in the field" (United States v. Pacific Railroad, 120 U.S. 227, 239 (1887)) in order "to prevent the enemy from using it" (United States v. Caltex, Inc., 344 U.S. 149, 153 (1952)). /33/ In fact, evacuees were told that the government would "(p)rovide services with respect to the management, leasing, sale, storage or other disposition of most kinds of property" (J.A. 262); that the government did "not plan to take title to the property of the evacuees," but would "aid (them) in a voluntary liquidation of their property at reasonable prices and * * * protect them against individuals who seek to take advantage of their situation" (J.A. 279); that evacuees could continue to "receive rents, profits, dividends or royalties from businesses or property" and also could "make investments" or "continue business negotiations" (J.A. 289); and that "furniture and household articles" would be shipped at the government's expense to those evacuees who so desired (J.A. 295). /34/ The government thus disclaimed the necessity for, and made provisions (albeit inadequate) to avoid, takings of property. It could not and did not, at the same time, assert a rationale of "military necessity" to justify the destruction of property without compensation. Cf. p. 5, supra (government publicly recognized, in 1947, that its steps to protect evacuees' property had been unsuccessful and that monetary redress was therefore appropriate). Accordingly, even if the government engaged in the "fraudulent concealment" suggested by the court of appeals, the statute of limitations was never tolled because Hirabayashi and Korematsu did not foreclose a Takings Clause claim. Any speculative possibility that this Court might have held such claims barred is no basis to excuse respondents from pursuing their actions for 40 years. B. If the Statute of Limitations Was Ever Tolled, the Tolling Ended More Than Six Years Before This Action Was Filed The court of appeals concluded that, notwithstanding public knowledge of all of the relevant facts, the statute of limitations was tolled until there was an official concession that the wartime evacuation was unjustified. The public availability of all relevant facts no later than 1950, however, meant that the statute of limitations at least began to run at that time. And, even if the Court were to overlook all of the errors of the court of appeals, it would still be apparent that the statute of limitations began to run no later than the date of President Ford's proclamation in 1976. 1. There Is No Plausible Reason Why Respondents Could Not Have Asserted Their Claims Many Years Ago When a statute of limitations is tolled, the tolling does not last until whatever moment the plaintiff decides to bring suit. Rather, the tolling suspends the statute of limitations as against a plaintiff who is "blameless(ly) ignoran(t)" (Urie v. Thompson, 337 U.S. 163, 170 (1949)) of his claim until he is reasonably chargeable with notice of those facts that are required to plead a right of action. Once an injured party knows or ought to know facts alleged to have been concealed, he must decide, within the period of the statute of limitations, "whether to sue or not" (Kubrick, 444 U.S. at 124). /35/ a. The court of appeals did "not dispute the District Court's reading of the historical record" (J.A. 55 (footnote omitted)), in which that court found that all of the arguably material evidence that was not disclosed to this Court "became public and (was) available to diligent plaintiffs from the late 1940's onward" (J.A. 146). /36/ Thus, as the dissenters below pointed out, it is "uncontroverted" (J.A. 78 (emphasis omitted)) that "the essential facts for a legal challeng were well known by 1950" (J.A. 88). That should have been enough to end this case. Faced with that state of affairs, however, the court of appeals abandoned the principle that a plaintiff to assert his rights or lose them, and instead held that tolling could be ended by "nothing less than an authoritative statement by one of the political branches, purporting to review the evidence when taken as a whole" and conceding "that there was reason to doubt the basis of the military necessity rationale" (J.A. 56, 59). The court insisted on a confession of "legal error" (J.A. 60 n.67). This conclusion that a statute of limitations can be tolled with the defendant admits wrongdoing is unprecedented. Unless it is a ticket good on this day and train only, the court's reasoning indicates that a plaintiff may wait to file suit, not until he is "aware" that he has been injured "on grounds that he himself consider(s) to be wrong and improper" (Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985), cert. denied, No. 84-1960 (Oct. 7, 1985)), but until such time if ever, as the government publicly confesses that the plaintiff's claim is meritorious. In conditioning the United States' waiver of sovereign immunity on timely filing of a claim, Congress of course "was entitled to assume that the limitation period it prescribed meant just that period and no more." Soriano v. United States, 352 U.S. 270, 276 (1957). A potentially "limitless extension of the period of limitation" (id. at 275), like the one posted by the court of appeals in this case, simply cannot be reconciled with the statutory requirement that actions be brought within six years of accrual. See also Finn v. United States, 123 U.S. 227 (1887). The very nature of a limitations period is to require a prospective plaintiff to take timely action on his own perception that he is the victim of a wrong. Not having done so, respondents cannot resurrect their claims against the government based on its later reassessment of its conduct during World War II. This Court's decision in United States v. Kubrick, 444 U.S. 111 (1979), precludes the extraordinary theory of tolling embraced by the court of appeals. In Kubrick, this Court specifically rejected the suggestion that "for statute of limitations purposes a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment" (444 U.S. at 122), and rejected the theory that a plaintiff must learn that "his injury was legally blameworthy" (id. at 121) before a claim will accrue. /37/ It "would go far to eliminate the statute of limitations as a defense separate from the denial of breach of duty," the Court reasoned, to hold that a claim "accrue(s) only when the plaintiff had reason to suspect or was aware * * * that a legal duty to him had been breached" (444 U.S. at 125). Under the theory of the court of appeals, however, the statute of limitations is tolled precisely as long as the defendant continues a "denial of breach of duty." Only an admission of legal wrongdoing will start it running. b. The court of appeals sought to justify this obvious departure from settled principles by saying that this Court, in Hirabayashi and Korematsu, had made the political branches the ultimate arbiters of the "military necessity" rationale for the evacuation, and that therefore any court presented with any claim relating to the evaluation before 1980 would have simply deferred without question to the view of the President and Congress, circa 1942. Tolling must continue, said the court of appeals, "until the 'war-making branches' * * * released the federal courts from the grasp of Korematsu and Hirabayashi by indicating that deference was no longer due to the wartime judgment of military necessity for the mass evacuation" (J.A. 103). It was a contemporary criticism of Hirabayashi and Korematsu that they did indeed embody excessive deference to military judgment. Commentators immediately urged that "the basic issues should be presented to the Supreme Court again" and that "generous financial indemnity should be sought" (Rostow, supra p. 32, 54 Yale L.J. at 533. /38/ But the idea that those cases were based on absolute capitulation to the political branches no matter what the facts were, and could not be reexamined without the say-so of the political branches, was created out of whole cloth by the court of appeals. In Hirabayashi, this Court "stated in detail facts and circumstances * * * which support(ed) the judgment of the war-waging branches of the Government" that the evacuation was justified, and found that those facts and circumstances "afforded a rational basis for the decision which (was) made" (320 U.S. at 101-102). The relevant circumstances, according to this Court, were "facts of public notoriety" (id. at 102), including the events leading to the evacuation order (id. at 85-89), congressional findings (id. at 89-92), and the "social, economic and political conditions" that "in the particular war setting * * * set (Japanese-Americans) apart from others" (id. at 96, 101). "(T)hose facts, and the inferences which could be rationally drawn from them," the Court concluded, provided "adequate support" for the government's actions (id. at 103, 105). Similarly, in Korematsu, this Court cited evidence that tended to confirm()" (323 U.S. at 219) "the assumptions upon which (it) rested (its) conclusions in the Hirabayashi case" (id. at 218). It is one thing to say that, in retrospect, the facts recited could not justify the racial classification that was at issue in those cases. It is quite another to claim that the Court declined to look at the facts and merely deferred to the government's assertion that is conduct was justified. /39/ In further holding that Hirabayashi and Korematsu demanded absolute judicial deference to the political branches in the context of potential takings claims, the court of appeals also simply ignored a significant body of case law in which this Court demonstrated that "(t)he doors of our courts ha(d) not been shut" to potential plaintiffs in respondents' position. Ex parte Kawato, 317 U.S. 69, 78 (1942) (holding that no legal disability barred an evacuee who was a resident alien from prosecuting a civil suit). Indeed, shortly after Korematsu, the Court demonstrated in Duncan v. Kahanamoku, 327 U.S. 304 (1946), that it was willing to overrule a government plea of "military necessity" (327 U.S. at 340 n.1 (Burton, J., dissenting)), when it held that martial law could not be sustained in the Hawaiian Islands even though "one-third of the civilian population (was) of Japanese descent" (id. at 333 (Murphy, J., concurring)). In flat contradiction to the entire theory of the decision below, Chief Justice Stone, citing and contrasting his own opinion for a unanimous Court in Hirabayashi, stated: "(E)xecutive action is not proof of its own necessity, and the military's judgment here is not conclusive that every action taken * * * was justified by the exigency" (327 U.S. at 336 (Stone, C.J., concurring)). /40/ This Court also long ago demonstrated that the rights of Japanese-Americans who lost property as a result of World War II measures could be vindicated. See Honda v. Clark, 386 U.S. 484 (1967) (suit by Japanese-Americans to recover funds seized under Trading With the Enemy Act); cf. Oyama v. California, 332 U.S. 633 (1948); Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948). It is particularly significant that, in 1952, the Court held that resident enemy aliens whose property had been seized during World War II under the Trading with the Enemy Act were entitled to its return, stating that it was "clear * * * that friendly aliens are protected by the Fifth Amendment requirement of just compensation" and that according less protection to resident enemy aliens would pose a "constitutional problem." Guessefeldt v. McGrath, 342 U.S. 308, 318-319 (1952); see also Nagano v. McGrath, 187 F.2d 759 (7th Cir. 1951) (legal resident of the United States is entitled to return of seized property even though Japan was her actual place of residence both before and during the war), aff'd by an equally divided Court, 342 U.S. 916 (1952). Decisions such as these belie the assertion by the court of appeals that Hirabayashi and Korematsu constituted an insuperable obstacle to timely assertion of respondents' claims. In sum, there is no plausible support in Hirabayashi and Korematsu for the view that respondents could reasonably delay the assertion of their claims until there had been an official public confession of error. 2. If an Official Statement Concerning the Evacuation Was Necessary to Start the Running of the Statute of Limitations, It Came in 1976 Even if, as the court of appeals asserted (J.A. 56), "nothing less than an authoritative statement by one of the political branches" could have triggered the statute of limitations on respondents' Takings Clause claims, the requisite statement came in 1976 -- more than seven years before the complaint in this case was filed. At that time, President Ford formally revoked the Executive Order under which the evacuation program had been carried out, and officially proclaimed: "We now know what we should have known then -- not only was that evacuation wrong, but Japanese-Americans were and are loyal Americans." Proclamation No. 4417, 41 Fed. Reg. 7741 (1976). /41/ In contrast, all that Congress said in 1980, when it established the Commission on Wartime Relocation and Internment of Civilians to investigate the evacuation program, was that there was a need for "'inquiry'" and for "'study'" (J.A. 59-60) "to determine whether any wrong was committed" (S. Rep. 96-751, 96th Cong., 2d Sess. 1 (1980)). /42/ CONCLUSION The judgment of the court of appeals should be vacated and the case remanded with directions to transfer it to the United States Court of Appeals for the Federal Circuit. If the Court reaches the merits, the judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROY T. ENGLERT, JR. Assistant to the Solicitor General BARBARA L. HERWIG MARC JOHNSTON JAY S. BYBEE Attorneys JANUARY 1987 /1/ On December 7, 1941, President Franklin D. Roosevelt, acting pursuant to the Alien Enemy Act of 1798, 50 U.S.C. 21, proclaimed that "an invasion has been perpetrated upon the territory of the United States by the Empire of Japan" and directed that alien Japanese residing within the United States or its territories were "to comply strictly with the regulations which are hereby or which may be from time to time promulgated by the President" (Proclamation No. 2525, 6 Fed. Reg. 6321, 6321). He specifically authorized the Attorney General to exclude alien enemies from designated areas, including "any locality in which residence by an alien enemy shall be found to constitute a danger to the public peace and safety of the United States" (id. at 6323). During the next two months, Attorney General Francis B. Biddle ordered enemy aliens excluded from some 84 areas on the West Coast (see J.A. 113). /2/ On February 20, 1942, Secretary of War Henry L. Stimson delegated authority under Executive Order No. 9066 to Lt. General John L. DeWitt, the Commanding General of the Western Defense Command, to designate military areas in the Western United States. See Hirabayashi v. United States, 320 U.S. 81, 86 (1943). On March 2, in Public Proclamation No. 1, 7 Fed. Reg. 2320, General DeWitt designated as military areas the western portions of California, Oregon, and Washington, and the southern portion of Arizona, stating that the Western Defense Command was "particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war and * * * is subject to espionage and acts of sabotage." On March 24, General DeWitt issued Public Proclamation No. 3, 7 Fed. Reg. 2543, which established a curfew for all alien Japanese, Germans, and Italians and for all persons of Japanese ancestry within military areas. The principal public proclamations, together with the Executive Orders and Civilian Exclusion Order Nos. 1 and 57, were reprinted as part of the Brief for the United States at 90-124 in Hirabayashi v. United States, supra. The Court also quoted many of those materials and the pertinent statutes in its opinion (320 U.S. at 85-89). /3/ The provisions of the Act of March 21, 1942, were repealed in 1976 because of Congress's "conviction that such powers are inappropriate in peacetime" (S. Rep. 94-1168, 94th Cong., 2d Sess. 7 (1976); see H.R. Rep. 94-238, 94th Cong., 1st Sess. 9-10 (1975)). /4/ In Hirabayashi v. United States, supra, and Yasui v. United States, 320 U.S. 115 (1943), this Court unanimously upheld convictions under the Act of March 21, 1942, for violations of curfew orders. In Korematsu v. United States, 323 U.S. 214 (1944), a divided Court upheld a conviction for violation of an exclusion order. In a case decided the same day as Korematsu, Ex parte Endo, 323 U.S. 283 (1944), the Court avoided a constitutional challenge to the relocation orders and the detention aspects of the program, deciding instead that the War Relocation Authority lacked authority under either the Act of March 21, 1942, or Executive Orders Nos. 9066 and 9102 to detain concededly loyal, law-abiding U.S. citizens such as Ms. Endo. See 323 U.S. at 297; id. at 308 (Roberts, J., concurring). The Court pointed out in Korematsu that evacuation orders, whose constitutionality it upheld in Korematsu, and detention orders, whose constitutionality it did not reach in Endo, "pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others." 323 U.S. at 221; see also id. at 222. /5/ On June 16, 1983, the Commission fulfilled its mandate under 50 U.S.C. App. 1981 note Section 4(a)(3) by issuing a five-point recommendation, including a recommendation for a lump-sum payment of $20,000 to each surviving evacuee. Congress has since had before it several bills that would make lump-sum payments. E.g., H.R. 3387, 98th Cong., 1st Sess. (1983); H.R. 4100, 98th Cong., 1st Sess. (1983); S. 1520, 98th Cong., 1st Sess. (1983); see Japanese-American and Aleutian Wartime Relocation: Hearings Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 98th Cong., 2d Sess. (1984); Japanese American Evacuation Redress: Hearings Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 98th Cong., 1st Sess. (1983). /6/ The district court postponed ruling on the certification of the class until resolution of the government's motion to dismiss (J.A. 110 n.1). /7/ The complaint also asserted a number of other constitutional claims (Counts I-II, IV-XV) and a claim for conspiracy to deprive plaintiffs of their civil rights (Count XVI), all of which were held by the district court to state no cause of action for damages against the United States (J.A. 129-130, 153). /8/ Because respondents limited their prayer for damages to $10,000 for each nontort cause of action for each class member (J.A. 162, 215), respondents' Tucker Act claims fell under 28 U.S.C. 1346(a)(2), the "Little Tucker Act," which provides for concurrent jurisdiction in the United States Claims Court and in the district courts. Only the Claims Court can hear Tucker Act claims for more than $10,000. 28 U.S.C. 1491. /9/ U.S. Army, Western Defense Command, Final Report: Japanese Evacuation from the West Coast 1942 (1943). The Final Report was published in book form by the Government Printing Office and was made public in January 1944. /10/ Respondents also pointed to documents that they claimed were disclosed for the first time in the Commission report dated 1982. The district court discussed those documents and found that they were either irrelevant to respondents' claims or corroborative of information already available (J.A. 142-146). Three of the documents were wartime Justice Department memoranda in which Edward Ennis, Director of the Department's Alien Enemy Control Unit, and attorney John Burling urged that the evidence questioning military necessity -- notably, the substance of the Ringle report, which in fact had been published in the October 1942 issue of Harper's -- should be called to this Court's attention in the government's briefs in Korematsu and Hirabayashi (J.A. 264-269, 272-276 (Ennis), 270-271 (Burling)). The district court noted that the documents to which Ennis and Burling referred "became public and were available to diligent plaintiffs from the late 1940's onward," that "there has long been sufficient circumstantial evidence" that the Justice Department had the Ringle, Fly, and Hoover memoranda when it filed its brief in Korematsu (J.A. 146), and that the "concealment, whether intentional or not, (was) not a basis for tolling a statute of limitations beyond the time the information concealed by that conduct was published" (J.A. 145). /11/ The court nevertheless acknowledged that, because the FTCA claims had been dismissed, all future appeals in this case would be heard in the Federal Circuit (J.A. 35 n.31). /12/ While the legislative history nowhere discusses mixed Tucker Act/non-Tucker Act cases, it does discuss mixed patent/nonpatent cases dealt with in Section 1295(a)(1). That section gives the Federal Circuit exclusive jurisdiction over an appeal if the jurisdiction of the district court "was based, in whole or in part," on the relevant statutory provision (Section 1338, relating to patents and plant variety protection), with certain exceptions. Because there is no exception for cases raising antitrust issues (which often are joined with patent issues), Section 1295(a)(1) appears to give the Federal Circuit exclusive jurisdiction over antitrust issues as well as patent issues appearing in the same case. The Department of Justice, which drafted Section 1295, intended that Section 1295(a)(1) be so construed. See Federal Courts Improvement Act of 1979: Hearings on S. 677 and S. 678 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 41 (1979) (testimony of Daniel J. Meador, Assistant Attorney General) (hereinafter 1979 Senate Hearings); Industrial Innovation and Patent and Copyright Law Amendments: Hearings on H.S. 6033, H.S. 6934, H.R. 3806, and 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. 392 (1980) (testimony of Maurice Rosenberg, Assistant Attorney General, and Frank P. Cihlar) (hereinafter cited as 1980 House Hearings). The opponents of Federal Circuit review of antitrust issues also recognized that the "in whole or in part" language of the proposed statute required that construction. Compare Court of Appeals for the Federal Circuit -- 1981: Hearings 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. 90, 111 (1981) (testimony of James W. Geriak and testimony of Benjamin L. Zelenko) (as a matter of policy Federal Circuit should not be given authority to decide nonpatent claims joined with patent claims) (hereinafter 1981 House Hearings), with Federal Courts Improvement Act of 1981 -- S. 21 and State Justice Institute Act of 1981 -- S. 537: Hearings on S. 21 and S. 537 Before the Subcomm. on Courts of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 198 (1981) (testimony of Mr. Geriak) (recognizing that, under bill, appeal in mixed patent/antitrust case must go in its entirety to Federal Circuit) (hereinafter 1981 Senate Hearings). Although it has been suggested that traces of legislative history hint that true mixed cases can be bifurcated by the district court (see Newman, Tails and Dogs: Patent and Antitrust Appeals in the Court of Appeals for the Federal Circuit, 10 APLA Q.J. 237, 240-241 (1982)), the weight of authority appears to be contrary (see Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422, 1434 (Fed. Cir. 1984) (district court may use this procedure only when patent claim is trivial and manipulatively joined with nonpatent claim in order to choose appellate forum); Cihlar & Goldstein, A Dialogue About the Potential Issues in the Patent Jurisdiction of the Court of Appeals for the Federal Circuit, 10 APLA Q.J. 284, 301 (1982) ("There is no problem with a nonpatent issue going to the CAFC in the absence of any attempt to manipulate jurisdiction at the outset. Indeed, Congress has clearly indicated that the CAFC is not to be a specialized patent court, and the CAFC will be handling many, many different kinds of nonpatent claims.")). In any event, the Federal Circuit will have exclusive jurisdiction of antitrust issues as well as patent issues in a true mixed case in which the issues have not been severed by the district court. Likewise, the Federal Circuit will have exclusive jurisdiction of non-Tucker Act issues as well as Tucker Act issues in a true mixed case in which the issues have not been severed by the district court. /13/ See, e.g., Atari, Inc. v. JS & A Group, Inc., 747 F.2d at 1438-1440 (stating rule and citing several cases in support). /14/ Indeed, the emphasis in the House report on the limited jurisdiction of the Federal Circuit came in the context of explaining the declaration in 28 U.S.C. 1291 that "(t)he jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title." Both the House report (H.R. Rep. 97-312, supra, at 40), and the Senate report (S. Rep. 97-275, supra, at 18) note that federal courts are courts of limited jurisdiction generally. The legislative history is also replete with indications that the Federal Circuit is not to be considered a "specialized court." H.R. Rep. 97-312, supra, at 19; S. Rep. 97-275, supra, at 6; H.R. Rep. 96-1300, 96th Cong., 2d Sess. 17 (1980); S. Rep. 96-304, 96th Cong., 1st Sess. 13 (1979); 1981 Senate Hearings 270 (statement of Daniel M. Friedman, Chief Judge, U.S. Court of Claims) (appropriate for Federal Circuit to determine antitrust claim joined with patent claim even though predecessor courts did not decide antitrust cases); Additional Judicial Positions: Hearing Before the Subcomm. on Courts of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 116 (1981) (statement of Chief Judge Howard T. Markey, U.S. Court of Customs and Patent Appeals); id. at 119 (statement of Chief Judge Friedman); 1981 House Hearings 18, 38 (statement and testimony of Chief Judge Friedman); id. at 45 (remarks of Congressman Sawyer); 1980 House Hearings 378-379 (statement of Maurice Rosenberg, Assistant Attorney General); id. at 392 (testimony of Mr. Rosenberg and Frank P. Cihlar) (court's breadth of jurisdiction is such that it could not validly be criticized as too "narrow or specialized" to give adequate treatment to ancillary issues raised along with issues over which it had exclusive jurisdiction); id. at 708 (testimony of Chief Judge Friedman); see also Atari, Inc. v. JS & A Group, Inc., 747 F.2d at 1436-1437. /15/ Discussion of mixed cases was confined to cases mixing patent issues with antitrust issues or other issues not covered by the "except" clause of Section 1295(a)(1). /16/ Section 1295(b) as proposed in S. 677, Section 735(a), would have given the Federal Circuit exclusive jurisdiction over appeals from a final decision of a district court "if the jurisdiction of the district court was based, in whole or in part, on section 1346 of this title, except that: (1) jurisdiction of appeals in cases brought under section 1346(a)(1) (tax refunds) in the district courts shall be in the court of appeals for the appropriate regional circuit; and (2) jurisdiction of appeals in cases brought under section 1346(b) (Federal Tort Claims Act) shall be governed by sections 1291, 1292, and 1294 of this title." /17/ Section 1295(a)(2) as proposed in S. 678, Section 324(c), would have given the Federal Circuit exclusive jurisdiction "in any appeal from a district court in which the jurisdiction of the district court was based, in whole or in part, on section 1346(b), except for any claim founded upon an Act of Congress or a regulation of an executive department providing for internal revenue, or on section 1346(g) of this title." Section 1346(b), as renumbered by S. 678, Section 331, would have been the Little Tucker Act; Section 1346(g) would have been the Quiet Title Act. /18/ See note 16, supra. /19/ H.R. 3806, Section 129(a), provided, in proposed Section 1295(a)(3), that the Federal Circuit would have exclusive jurisdiction over an appeal from a final decision of a district court "if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title, except that jurisdiction of an appeal in a case brought in the district court under section 1346(a)(1) (tax refunds), 1346(b) (Federal Tort Claims Act), or 1346(e) (certain tax actions) of this title shall be governed by sections 1291, 1292, and 1294 of this title." /20/ Except for renumbering of subsections, S. 1477, Section 326(a), as originally introduced contained a jurisdictional provision identical to that contained in H.R. 3806. On August 3, 1979, the bill was reported out of committee with an amended jurisdictional section. The amendment added to the "except clause" the phrase "or under section 1346(b) (the Little Tucker Act) when the claim is founded upon an Act of Congress or a regulation of an executive department providing for internal revenue." /21/ Except for renumbering of subsections, all three of these bills contained jurisdictional provisions identical to that in the amended version of S. 1477. S. 21, Section 126(a); H.R. 2405, Section 125(a); S. 1700, Section 127(a). /22/ Indeed, a case may be a Tucker Act case even though the plaintiff fails to cite the Tucker Act and protests that he did not intend to bring his lawsuit under the Tucker Act. See, e.g., Williams v. Secretary of the Navy, 787 F.2d 552, 557-558 (Fed. Cir. 1986); Maier v. Orr, 754 F.2d 973, 982 (Fed. Cir. 1985); Heisig v. United States, 719 F.2d 1153, 1155 (Fed. Cir. 1983); Denton v. Schlesinger, 605 F.2d 484, 486-487 (9th Cir. 1979); Cook v. Arentzen, 582 F.2d 870, 878 (4th Cir. 1978); Mathis v. Laird, 483 F.2d 943 (9th Cir. 1973) (per curiam); Carter v. Seamans, 411 F.2d 767, 771 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1970). /23/ Another approach would be to disregard any claim that is at any time found to suffer from a "jurisdictional" defect -- on the ground that the statute recognizes only those claims over which the district court actually has "jurisdiction." As explained at pages 4-6 and note 4 of our reply memorandum at the petition stage, that was the government's initial approach to the issue, and it was also the approach taken by the D.C. Circuit in Van Drasek v. Lehman, 762 F.2d 1065 (1985), where the court transferred a case to the Federal Circuit, which later affirmed the judgment of the district court on the basis of that court's opinion. (This Court has granted certiorari to review the Federal Circuit's judgment on issues unrelated to the question of jurisdiction (No. 86-319).) See also J.A. 70, 99 & n.4. For example, it was once our view that a time-barred Tucker Act claim should not give rise to Federal Circuit jurisdiction on appeal, because the statute of limitations in a case brought against the government, as a condition of the waiver of sovereign immunity, can provide a "jurisdictional" bar to suit (see, e.g., Mottaz, slip op. 6). That position has been rejected, however, and we think rightly so. See Pacyna v. Marsh, No. 84-1706 (Jan. 21, 1986) (order); Bray v. United States, 785 F.2d 989, 992 (Fed. Cir. 1986); Hurick v. Lehman, 782 F.2d 984 (Fed. Cir. 1986). Often (this case is an example), there is no doubt that a claim was brought under the Tucker Act, but whether the statute of limitations has run is a major issue (sometimes the only issue) on appeal. The jurisdiction of the court of appeals to decide the case should not turn on its decision of the major issue on appeal -- whether the statute of limitations has run. A proper approach to this issue, therefore, focuses not on technical questions of jurisdiction, but more broadly on whether a claim, taken as a whole, is frivolous for any reason -- jurisdictional or otherwise. /24/ Odin v. United States, 656 F.2d 798, 802 & n.20 (D.C. Cir. 1981); Richman v. United States, 709 F.2d 122, 124 (1st Cir. 1983); Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864 (1983); Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971); Kielwein v. United States, 540 F.2d 676, 679 (4th Cir.) cert. denied, 429 U.S. 979 (1976); Employees Welfare Committee v. Daws, 599 F.2d 1375, 1378 (5th Cir. 1979); Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 514-515 (6th Cir. 1974); Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972); West v. United States, 592 F.2d 487, 492 (8th Cir. 1979); Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977) (per curiam); Three-M Enterprises v. United States, 548 F.2d 293, 294 (10th Cir. 1977); Lykins v. Pointer, Inc., 725 F.2d 645, 646 (llth Cir. 1984); Dancy v. United States, 668 F.2d 1224, 1227 (Ct. Cl. 1982); McWhirter Distributing Co. v. Texaco, Inc., 668 F.2d 511, 527 (Temp. Emer. Ct. App. 1981). /25/ But see Personal Justice Denied 383-384 n.191 (quoting testimony of John J. McCloy before Commission). /26/ The one exception is the government's -- and the Court's -- inference of subversiveness from the fact that "(a)pproximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan." Korematsu, 323 U.S. at 219 (footnote omitted); see Brief for the United States at 54-55 & n.28, Korematsu. One certainly may question the validity of the inference drawn from the uncontested facts stated, but there is no basis to suggest that the government concealed anything that would help anyone to argue against that inference. See J. tenBroek, E. Barnhart & F. Matson, Prejudice, War and the Constitution 285-286 (1954). /27/ See, e.g., Brief of the American Civil Liberties Union, Amicus Curiae, at 21, Korematsu (describing footnote as a "singular repudiation of General DeWitt's testimony on the military necessities, which obviously could be required only by the existence of reliable conflicting information from other sources," and specifying factual assertions, including radio signaling, contained in Final Report but not government's brief); Rostow, supra p. 32, 54 Yale L.J. at 520; Personal Justice Denied 88 (footnote omitted) ("in its brief to the Supreme Court the Justice Department was careful not to rely on DeWitt's Final Report as a factual basis for the military decision it had to defend"). /28/ Thus, to the extent that the Court may have shown some deference to the judgment of the political branches, it clearly did not defer to General DeWitt. Rather, it deferred to the judgment of President Roosevelt (who issued Executive Order No. 9066 and, well after General DeWitt began issuing public proclamations, issued Executive Order No. 9102 creating the War Relocation Authority) and Congress (which passed the Act of March 21, 1942, three days after Executive Order No. 9102). /29/ The court of appeals explicitly recognized that nondisclosure of the Ringle report, in which an intelligence officer with some experience argued that Japanese-Americans did not pose a threat, was not by itself sufficient to toll the statute of limitations (J.A. 56 n.62; see also J.A. 23 & n.17). Indeed, the truth is that the substance of the Ringle report was available to any litigant who wished to use it, and some did (see note 30, infra). In fact, the "anonymous" version of the Ringle report was cited in the government's briefs in both Hirabayashi (at 29 n.46) and Korematsu (at 12 n.3), albeit not for the propositions that the court of appeals emphasized. The court of appeals insisted, however, that the result in Korematsu would have been different if the government had not "conceal(ed) * * * the fact that there were no intelligence reports contradicting Ringle" (J.A. 57; see also J.A. 22-23). /30/ If, as the court of appeals claimed, the entire case in Korematsu had turned on whether there were any such reports, at oral argument the Court surely would have taken the explicit invitation of the Brief of the American Civil Liberties Union, Amicus Curiae, at 23 n.11, to demand of the government whether there were intelligence reports contradicting the Ringle report, whose substance had appeared in Harper's as the work of an unidentified "intelligence officer." See also Brief of the Japanese American Citizens League, Amicus Curiae, at 107-108 (discussing substance of Harper's article); id. at 126-127 (ascribing to Ringle, by name, "faith" in Japanese-Americans "based on the widest knowledge obtainable"). In addition, if the precise authorship of the Harper's article mattered, the Court could have learned from C. McWilliams, Prejudice 114, 182-183 & n.15 (1944), that Ringle was the author. That book was available to the Korematsu Court and was cited in Justice Murphy's dissent (323 U.S. at 237-239 nn.6, 7, 9 & 12). Since World War II, certain intelligence data have come to light, which existed before Pearl Harbor but were unknown to the Justice Department at the time of briefing and argument of Hirabayashi and Korematsu, which might be taken to controvert certain conclusions of the Ringle report. See, e.g., Japanese-American and Aleutian Wartime Relocation: Hearings Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 98th Cong., 2d Sess. 493-499, 504-529 (1984). It is unclear what role this information may have played in the formulation of the relocation program. /31/ In fact, the court of appeals itself did not reply on language in this Court's opinions in concluding that Hirabayashi and Korematsu would have precluded Takings Clause claims, but rather looked to the construction that "the Attorney General and Congress" supposedly placed on those decisions (J.A. 31). There is, of course, no particular reason to assume that the courts would have been bound by any construction that the nonjudicial branches may have placed on the decisions of this Court (see J.A. 92 n.3 (dissent)). Indeed, one of the many ironies in the approach taken below is the court's contradictory interpretations of the 1948 and 1980 legislation. The 1948 Evacuation Claims Act is said to prove that respondents had no Takings Clause claim at that time because Congress thought that they had no such claim, yet the 1980 legislation -- by a Congress that just as clearly contemplated legislative rather than judicial redress -- is said to represent a confession that the evacuation was "legal error" (J.A. 60 & n.67) and is held to give respondents a previously nonexistent Takings Clause claim. /32/ The judges in the panel majority, in response to the dissent from denial of rehearing en banc, insisted that Hirabayashi and Korematsu contained a "situation-specific holding * * * (that) courts must defer to the judgment of Congress and the Executive that sufficient military necessity existed to justify the World War II internment policy" (J.A. 103 (emphasis partially omitted)). Among other defects, that statement describes as this Court's "holding" a resolution of the issue that this Court expressly reserved: whether "confinement" (Hirabayashi, 320 U.S. at 105) and "detention" (Korematsu, 323 U.S. at 222) as well as exclusion and curfew orders were justified. The Korematsu Court wrote, "we are dealing specifically with nothing but an exclusion order" and described as "momentous" and "serious" the questions it did not reach concerning the legality of assembly or relocation orders (id. at 222-223). /33/ When this defect in the court's analysis was pointed out by dissenters (J.A. 91-92), the panel majority's only response was that "the taking of property was part and parcel of the internment policy" (J.A. 103-104 n.1). The statement of the panel majority is false. The taking of property was not part and parcel of the evacuation (or "internment") policy. Moreover, the panel majority's statement would have no legal significance even if true, for the idea that this Court would not separately analyze separate parts of the evacuation policy is flatly contradicted by Korematsu, 323 U.S. at 221-222. /34/ To the extent that evacuees relied on such undertakings and yet nonetheless lost property, they might indeed -- as respondents further claimed in their complaint -- have had claims against the government under theories of contract or bailment (see J.A. 39). The court of appeals, however, correctly held that the statute of limitations would have run on any such claims, because the existence of a military justification for the evacuation would have been irrelevant to contract and bailment claims (J.A. 61-62). /35/ The statute of limitations on actions brought by the government, 28 U.S.C. 2416(c), makes explicit that it is tolled while "facts material to the right of action are not known and reasonably could not be known" (emphasis added). The legislative history of this provision states that the unknown "material facts" underlying a tolling "must go to the very essence of the right of action" (S. Rep. 1328, 89th Cong., 2d Sess. 6 (1966)) and explains that "the principal application of this exclusion will probably be in connection with fraud situations," such as "where the affirmative act of a wrongdoer has served to conceal the fraudulent act" (ibid.). It appears that Congress, in enacting Section 2416, believed it was duplicating the rule applicable to suits against the government. As this Court noted in Crown Coat Front Co. v. United States, 386 U.S. 503, 521 n.14 (1967), the congressional intent behind that Section was "to 'put the Government on a parity with those private litigants who may sue' and 'to equalize the position of litigants'" in suits involving the government. See, e.g., S. Rep. 1328, supra, at 2. There is no reason to suppose that a more expansive tolling doctrine might apply to claims against the government, when the relevant statute of limitations contains no authority for any tolling at all. /36/ The Ringle, Fly, and Hoover memoranda were all cited and discussed in M. Grodzins, Americans Betrayed (1949). See J.A. 54 n.59; C.A. App. 260-287. The court of appeals conceded that "(a)t the very least (this) should have alerted (respondents) to the need to conduct further inquiries into the factual basis of their claims" (J.A. 55 n.60). Notably, the Grodzins book was followed in the 1950s, 1960s, and 1970s by several other books that discussed the three memoranda; an "incomplete list" appears in the district court's opinion (J.A. 141 n.26). Nor can it be seriously suggested that it was a secret until recently that the government had had the Ringle, Fly, and Hoover memoranda while litigating Korematsu. For example, the second volume of the autobiography of the wartime Attorney General openly discusses the Fly and Hoover memoranda and the internal debate within the government about the evacuation. See F. Biddle, In Brief Authority 212-226 (1962); see also, e.g., U.S. Dep't of the Interior, War Relocation Authority, Wartime Exile, The Exclusion of the Japanese Americans from the West Coast 145, 154-158 (1946) (quoting Hoover and Fly memoranda). Former Attorney General Biddle, some 25 years ago, also made quite explicit his opinion that the evacuation had not been supported by "military necessity" (F. Biddle, supra, at 221). /37/ The attempt by the court of appeals (J.A. 52 n.56) to distinguish Kubrick on the ground that that case did not involve alleged fraudulent concealment is doubly flawed. In the first place, if the court of appeals has correctly equated a mere failure to admit wrongful conduct with fraudulent concealment, then Kubrick was indeed, under the court of appeals' own definition, a case involving such concealment, because there the government repeatedly denied any wrongdoing. See Kubrick, 444 U.S. at 114-115. Indeed, in Kubrick, there was a suggestion that the government may actually have affirmatively tried to mislead the plaintiff by a "fabrication" concerning the cause of his injury (id. at 128 (Stevens, J., dissenting)). In the second place, the court of appeals has confused the grounds for tolling a statute of limitations (of which fraudulent concealment is but one variety, blameless ignorance of injury being another) with what must be discovered to trigger the limitations period. Kubrick held that any tolling of the statute of limitations ends when a plaintiff has sufficient notice of the factual basis of his claim to oblige him to make inquiries (see id. at 123-124). Here, the court of appeals acknowledged that respondents had such notice more than three decades before they brought suit (see J.A. 66 n.60). "Once (a) plaintiff is on inquiry that it has a potential claim," it is immaterial whether the statute of limitations was previously tolled because "defendant * * * concealed its acts" or because the plaintiff's "injury was 'inherently unknowable,'" and in either case "the statute can start to run." Japanese War Notes Claimants Association v. United States, 373 F.2d 356, 359 (Ct. Cl.), cert. denied, 389 U.S. 971 (1967). /38/ Thus, as early as 1945 at least one leading commentator agreed with the district court (J.A. 142) that a litigant could responsibly file suit to challenge Korematsu head on. See Rostow, supra, at 533 (indicating that this Court can and sometimes will "correct( ) a decision occasioned by the excitement of a tense and patriotic moment"). /39/ To be sure, that is what the most vehement critics of the Court's opinions claimed. See, e.g., Korematsu, 323 U.S. at 245 (Jackson, J., dissenting); Rostow, supra p. 32. This Court, however, stated that it was engaging in "the most rigid scrutiny" (Korematsu, 323 U.S. at 216). Although lower courts were obliged to follow the holding of Korematsu -- that the evacuation was constitutional -- nothing would have required them to capitulate to (nonexistent) claims that military necessity justified the taking of property. And this Court, of course, had no obligation even to adhere to Korematsu if a timely attempt had been made to challenge it in the context of a Takings Clause claim. /40/ The Commission on Wartime Relocation and Internment of Civilians concluded that Duncan v. Kahanamoku "effectively overrules one major predicate of the Korematsu decision by showing no deference to military judgment when the control of civilians and civilian institutions in uninvaded territory is at stake" (Personal Justice Denied 282). There is absolutely no reason why that argument could not have been presented to the courts within six years after Duncan was decided; if Korematsu did indeed rest on excessive deference to the political branches, that was for this Court to declare in an action timely filed, not for the political branches themselves to conclude decades later. /41/ Other portions of President Ford's strongly worded proclamation are quoted at p. 6, supra. The significance of President Ford's proclamation hardly went unnoticed among respondents and the members of their proposed class. Respondent Hohri, in at least one published article, has noted that a 1970 conference, "the first occasion on which I personally recall hearing about reparations," led to the creation of a committee "that sought and realized the issuance" of the Ford proclamation. Hohri, Redress as a Movement Towards Enfranchisement, in Japanese Americans, 196, 197 (R. Daniels, S. Taylor & H. Kitano eds. 1986); see also Minami, Coram Nobis and Redress, in Japanese Americans, supra at 200, 201. /42/ It is important to bear in mind that, under the analysis of the court of appeals, respondents could not bring suit in the absence of an official concession that the evacuation had been wrong. The viability of their case therefore depends both on President Ford's Proclamation not having constituted such a concession and on Congress's 1980 action having constituted such a concession. If President Ford's proclamation truly was not sufficiently authoritative, and if (as respondents have admitted, Br. in Opp. 12) Congress's 1980 action was not a concession of legal error either, then the unmistakable -- and absurd -- import of the analysis of the court of appeals is that respondents' action is not time barred but premature, since all federal courts (including this Court) remain within the "grasp of Korematsu and Hirabayashi" (J.A. 103) unless and until the President or Congress concedes "legal error" (J.A. 60 n.67). APPENDIX