UNITED STATES OF AMERICA, PETITIONER V. WILLIAM HOHRI, ET AL. No. 86-510 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. II 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 Takayoushi; and the National Council for Japanese American Redress. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Statutes involved Question presented Statement Reasons for granting the petition Conclusion OPINIONS BELOW The majority and dissenting opinions of the court of appeals panel (86-298 Pet. App. 1a-71a) /1/ are reported at 782 F.2d 227. The order of the court of appeals denying rehearing en banc and the accompanying opinions (86-298 Pet. App. 72a-96a) are reported at 793 F.2d 304. The opinion of the district court (86-298 Pet. App. 97a-147a) 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 (86-298 Pet. App. 72a-73a). On August 13, 1986, Justice White extended the time which to file a petition for a writ of certiorari to and including September 27, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 28 U.S.C. 1295 provides in pertinent part: (a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction -- * * * * (2) 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 * * * shall be governed by sections 1291, 1292, and 1294 of this title * * * . 28 U.S.C. 1346 provides in pertinent part: (a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: * * * * (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort * * * . (b) Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accuring on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 2401 provides in pertinent part: (a) * * * (E)very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues * * * . 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 the 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 1. Respondents are an organization of Japanese-Americans and 19 Americans of Japanese ancestry or resident Japanese aliens who were interned under the Japanese evacuation program during World War II, or are descended from internees. On March 16, 1983, respondents filed this class action /2/ against the United States, alleging 22 causes of action arising out of their evacuation and internment, including violations of the Constitution (Counts I-XV), the civil rights laws (Count XVI), and the Federal Tort Claim Act (FTCA) (Counts XVII-XX), and allegations of breach of contract (Count XXI) and fiduciary duty (Count XXII). Jurisdiction was alleged under 28 U.S.C. 1331, 1346(a)(2), and 1346(b) and other provisions. On a 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 (86-298 Pet. App. 97a-147a). The court held that the alleged constitutional wrongs, with one exception, failed to state causes of action for compensation against the United States, and that implication of any such causes of action is barred by sovereign immunity. The exception was respondents' claims under the Takings Clause (Count III), which are cognizable under the Tucker Act. /3/ 86-298 Pet. App. 119a-121a. The district court then held (86-298 Pet. App. 126a-137a) that, although claims brought under the Takings Clause state a cause of action against the United States under the Tucker Act, respondents' claims were barred by the six-year statute of limitations (28 U.S.C. 2401(a)). Respondents had argued that the statute of limitations had been tolled because the United States had fraudulently concealed memoranda suggesting that there had been no military necessity for the evacuation of Japanese-Americans on the West Coast. Respondents had further argued that the statute did not begin to run until 1982, when this evidence was compiled and released in a report by the Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied. Assuming that the statute could be tolled by the type of concealment alleged, the district court found that the evidence on which respondents relied had been "available, and publicized, since soon after the war's conclusion," and that any new evidence disclosed in the Commission's report was not essential to respondents' cause of action. 86-298 Pet. App. 130a-136a. /4/ The district court concluded that the statute of limitations had not been tolled and that respondents' claims were therefore barred. Similarly, the district court found 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). 86-298 Pet. App. 140a-143a. The court also dismissed the civil rights claims on the basis of sovereign immunity and the statute of limitations (id. at 143a), the breach of contract claim on the basis of the statute of limitations (id. at 137a-139a), and the breach of fiduciary duty claim on the basis that no fiduciary duty existed (id. at 139a-140a). 2. a. A divided panel of the United States Court of Appeals for the District of Columbia Circuit held that it had jurisdiction over the appeal. The majority recognized that 28 U.S.C. 1295(a)(2) provides that exclusive jurisdiction lies in the United States Court of Appeals for the Federal Circuit if the district court's jurisdiction was based in whole or in part on 28 U.S.C. 1346, except "where original jurisdiction is based, inter alia, on Federal Tort Claims Act (FTCA) claims" (86-298 Pet. App. 21a). The majority held that the "except" clause in Section 1295(a)(2) deprived the Federal Circuit of jurisdiction when an FTCA claim is joined with a Tucker Act claim (86-298 Pet. App. 21a-22a). The majority recognized that the Federal Circuit's jurisdiction remains exclusive when the FTCA claim in a complaint is frivolous, but found the FTCA claim in this case nonfrivolous because it was not "substantively farfetched" (86-298 Pet. App. 21a-22a n.27). Nevertheless, the majority affirmed dismissal of the FTCA claim because plaintiffs had not met the "unyielding," "'jurisdictional,'" and "mandatory" requirement of 28 U.S.C. 2675(a) that they comply with administrative filing requirements (86-298 Pet. App. 33a). The majority also held that the two-year statute of limitations (28 U.S.C. 2401(b)) had begun to run in 1980 and that any FTCA claims were time barred (86-298 Pet. App. 34a & n.48). With the FTCA claims thus removed from the case, the court of appeals held that all future appeals would indeed be within the exclusive jurisdiction of the Federal Circuit (id. at 24a n.31). On the merits, the court of appeals affirmed the district court's dismissal of all of respondents' claims except the Takings Clause claim, and the panel divided on whether the claim was time barred. The majority reversed the district court on the ground that the statute of limitations had been tolled until 1980. The majority began with the premise that in Korematsu v. United States, 323 U.S. 214 (1944), and Hirabayashi v. United States, 320 U.S. 81 (1943), this Court had established a "virtually insurmountable presumption of deference to the judgment of the military authorities" that evacuation of all Japanese-Americans was mandated by military necessity (86-298 Pet. App. 6a). /5/ 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 (86-298 Pet. App. 19a-20a, 45a; but see id. at 27a-28a) and would not have "survive(d) a threshold motion to dismiss" (id. at 42a n. 57). The majority accepted the district court's finding that evidence concealed during the war had been in the public domain since 1949, but then held that that evidence was insufficient: the only "concealed evidence * * * sufficient to rebut the presumption of deference to the military judgment" would be "nothing less than an authoritative statement by one of the political branches, purporting to review the evidence when taken as a whole" (86-298 Pet. App. 46a (emphasis omitted)). Thus, although the material evidence had been available for more than 35 years, the court held that the statute of limitations on respondents' taking claim did not begin to run until one of the political branches acknowledged "that there was reason to doubt the basis of the military necessity rationale" (id. at 49a). The majority found that "authoritative statement" in Congress's passage in 1980 of an Act creating the Commission on Wartime Relocation and Internment of Civilians (50 U.S.C. App. 1981 note). /6/ By passing that Act, "Congress finally removed the presumption of deference to the judgment of the political branches," and "the statute of limitations began to run" (86-298 Pet. App. 50a (footnote omitted)). Since respondents' taking claims were filed in 1983, less than six years after the passage of the Act, the court held that the statute of limitations had not run. b. Chief Judge Markey of the Federal Circuit, sitting by designation, dissented on both the jurisdictional and the statute of limitations questions. With respect to jurisdiction, he argued that the "except" clause in Section 1295(a)(2) deprived the Federal Circuit of jurisdiction over cases brought under Section 1346 only when the case was brought "in whole under one of the excepted subsections of Section 1346" (86-298 Pet. App. 59a). He reasoned that the majority's contrary rule was at odds with Congress's desire to create uniformity in Tucker Act adjudication by centralizing appeals in the Federal Circuit and would encourage forum shopping (id. at 61a-63a). /7/ On the merits, Chief Judge Markey contested the majority's reasoning, accusing the majority of reaching a "feel-good result" (86-298 Pet. App. 57a). The majority held, he said, that "the statute must be tolled for whatever length of time * * * it may take for a plaintiff, who knows all about the injury and defendant's identity, to learn something that might enable him to win" (id. at 66a). He pointed out that the district court's finding that respondents had sufficient evidence to file a complaint 35 years ago "has not been found clearly erroneous -- indeed, it has not truly been contested" (id. at 67a-68a). 3. a. The court of appeals declined to rehear the case en banc, with five judges dissenting in an opinion by Judge Bork (86-298 Pet. App. 72a-91a). On the jurisdictional question, the dissenters noted that, under the majority's interpretation of Section 1295(a)(2), "a suit based in whole or in part on the Tucker Act must be appealed to the Federal Circuit, unless it is also based in part of the Federal Tort Claims Act, in which case it must be appealed to one of the twelve regional courts of appeals" and described that result as "stand(ing) the statute on its head" (86-298 Pet. App. 84a-85a). The dissenters added that "the federal tort claim in this case was clearly frivolous" "because no non-frivolous legal arguments may be made in its defense" and stated that no rationale, other than a desire to decide the appeal, existed for the majority's "inventive rule" that an FTCA claim could be frivolous only if substantively farfetched (id. at 89a). The dissenters also disagreed with the majority on the tolling of the statute of limitations. They argued that the majority's insistence on an authoritative statement from a political branch resulted from a misinterpretation of Hirabayashi and Korematsu as "creat(ing) a rule of absolute and permanent judicial deference to any claim of 'military necessity'" (86-298 Pet. App. 75a), and that if such a statement was required it was made in 1976 by President Ford (id. at 78a n.1). /8/ In addition, they contended that the claims presented in this suit had never been barred by "military necessity" since that doctrine applies only to property destroyed in battle or diverted or rationed by a wartime regulatory program (id. at 80a-81a); here, "the taking of property was not the object of, nor was it in any way necessary to, the relocation program" (id. at 80a). Finally, the dissenters concluded that "even if the legal justification for the relocation were identical to that needed to render a taking noncompensable, which it is not, and a statement from the political branches necessary, which it is not, and the statement from President Ford irrelevant, which it is not, the statement by one of the 'war-making branches' the panel majority requires could have been extracted through litigation. This means that this suit could have been brought successfully at any time within the past forty years and that the six-year limitations period had long since passed" (id. at 82a). b. In a separate statement, Judges Wright and Ginsburg defended the panel majority's opinion (86-298 Pet. App. 92a-96a). They repeated their position that this Court's "clear, pin-pointed, and definite" holdings in Korematsu and Hirabayashi posed "an insuperable obstacle to the present suit until the 'war-making branches,' Korematsu, 323 U.S. at 218-19, released the federal courts from the grasp of Korematsu and Hirabayashi" (86-298 Pet. App. 92a). Judges Wright and Ginsburg continued to read those cases "to have established the military necessity of the internment policy for both the particular claims at issue in those cases and the takings clause claims now before the court" (id. at 93a n.1). "(W)hen the Supreme Court has definitively held that deference to a military judgment is due in a particular case, litigants may not reasonably be required to re-litigate that issue in advance of a green light from the 'war-making-branches'" (id. at 93a (footnote omitted)). /9/ Judges Wright and Ginsburg also defended their jurisdictional holding on the ground that Section 1295(a)(2) "is densely composed" and "has been a source of confusion" and that Congress should amend it to "obviate court conflicts" (86-298 Pet. App. 95a). As to the frivolousness of the FTCA claims, these judges denied that their "substantively farfetched" test would extend to claims brought by plaintiffs who plainly lack standing, present moot claims, or flout basic procedural requirements (ibid.). REASONS FOR GRANTING THE PETITION 1. This Court has recently recognized that the application of 28 U.S.C. 1295(a)(2) to mixed cases involving both Tucker Act issues and claims within the "except" clause is "difficult and unsettled." United States v. Mottaz, No. 85-546 (June 11, 1986), slip op. 14 n.11. This case bears witness to the Court's observation. The majority's holding in this case that mixed Tucker Act/FTCA cases must be appealed to the regional circuit is in conflict with five dissenting votes on the D.C. Circuit, the view of the chief judge of the Federal Circuit, and an unequivocal Federal Circuit decision stating that "the 'except clause' applies only to cases brought in whole under one of the excepted subsections of Section 1346 and not even 'in part' under the nonrevenue provisions of Section 1346(a)(2)" (Bray v. United States, 785 F.2d 989, 990 (1986)). Litigants in mixed cases are in the intolerable situation of not knowing whether appeals should be taken to the regional circuit or the Federal Circuit (or both). Since Congress has not taken the suggestion that it amend Section 1295(a)(2) to clear up the confusion and court conflicts that the panel majority acknowledges, review by this Court is necessary. In our view, 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 the Tucker Act 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. Even if we are wrong on that point, and mixed Tucker Act/FTCA cases must be appealed to the regional circuit, this is not a true mixed case, for there is no principled basis to deem the FTCA claim in this case nonfrivolous. a. It is common ground between the majority and the dissents below that Congress sought to centralize Tucker Act appeals in the Federal Circuit (86-298 Pet. App. 21a, 61a, 86a). /10/ To that end, Congress explicitly provided for Federal Circuit jurisdiction over appeals from district court decisions even when the jurisdiction of the district court rested only "in part" on the Little Tucker Act (28 U.S.C. 1295(a)(2)). Thus, the general rule is certainly that a case including a Tucker Act claim is appealed in its entirety to the Federal Circuit, "even though the case contains a due process claim, or an equal protection claim, or any of numerous other important constitutional and statutory claims" (86-298 Pet. App. 86a). That rule in accordance with Congress's observations when it created the Federal Circuit that it was not to be a "specialized court." /11/ The question posed here is whether the except clause of Section 1295(a)(2) was intended to deprive the Federal Circuit of any jurisdiction over cases containing claims of the type enumerated therein, or rather simply indicates that the excepted causes of action may not serve as an affirmative basis for Federal Circuit jurisdiction. We believe the statutory language and legislative history show that the latter interpretation is correct. As the House Report makes clear, the except clause merely indicates that Federal Circuit jurisdiction does not derive from the presence in a case of FTCA, tax refund, and quiet title claims; /12/ it does not suggest that the regional courts of appeals are to have exclusive 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. /13/ Congress had no such affirmative desire to prevent the Federal Circuit, which may otherwise hear any kind of claim attached to a Tucker Act claim, from hearing "except clause" claims; it merely concluded that they did not call for explicit centralization under a grant of exclusive Federal Circuit jurisdiction. 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. /14/ b. The majority below acknowledged that, even under its rule, only a true mixed case would come within the jurisdiction of the regional circuit, since otherwise litigants could always choose their appellate forum by adding a nonviable FTCA (or other "except clause") claim to a Tucker Act claim. Thus, the majority held that the FTCA claim must be nonfrivolous in order to confer jurisdiction on the regional court of appeals. The legislative history supports the proposition that frivolous allegations in the complaint are to be disregarded for purposes of determining jurisdiction under Section 1295. /15/ The majority recognized that plaintiffs had clearly failed to comply with the jurisdictional FTCA administrative claim requirement, and that the causes of action were time barred. Yet the majority held that they were not frivolous. The majority initially reached that result by asserting that a claim is frivolous only if it is "substantively farfetched" (86-298 Pet. App. 22a n.27). If that holding were followed, litigants wishing to litigate in the regional circuit would have a major incentive to join procedurally defective but substantively plausible claims with their Tucker Act claims in order to avoid Federal Circuit jurisdiction. The majority appears to have abandoned this rationale on rehearing, but has entirely freed itself from the need to follow any principle of law and has simply announced, without reasoning, that litigants may control appellate jurisdiction by "'failure to grasp in full'" unequivocal precedent that renders an FTCA claim impossible (id. at 95a). Since the FTCA claims were frivolous, the majority should have held that it had no jurisdiction even under its construction of Section 1295. This Court should grant certiorari to correct the court's unprincipled assertion of jurisdiction. 2. As President Ford proclaimed in 1976, the wartime evacuation of persons of Japanese ancestry was one of "our national mistakes" and a "setback to fundamental American principles"; "the tragedy of that long-ago experience" must "never again be repeated." Proclamation No. 4417, 3 C.F.R. 8-9 (1977). /16/ Our national misjudgment under pressures of war in the 1940s, however, does not suggest that a lawsuit may be brought in the 1980s to challenge those events. Like all who have suffered wrongs, respondents had the duty to pursue their claims diligently, and to bring them within the time provided by the statute of limitations. See United States v. Kubrick, 444 U.S. 111, 117, 125 (1979). And the courts, in evaluating a statute of limitations defense, must bear in mind that the six-year statute in this case (28 U.S.C.2401(a)), as a condition on the waiver of sovereign immunity, must be strictly construed (see, e.g., Block v. North Dakota ex rel. Board of University & School Lands, 461 U.S. 273, 287 (1983)). The construction of the statute of limitations by the court of appeals was anything but strict. That court embraced the unprecedented conclusion that the statute of limitations was not triggered until there was, in essence, an official concession of wrongdoing, an unfamiliar and indefinite legal concept, the inherent manipulability of which is shown by the fact that President Ford's Proclamation was held not to be such a concession but the 1980 Act was. In the absence of a concession, the majority reasoned, neither this Court nor any other court before 1980 would have questioned either the holdings in Hirabayashi and Korematsu or their extension to a claim for just compensation, which those decisions did not purport to address. The factual background of this case contradicts such a conclusion. a. This is not an ordinary fraudulent concealment case. Faced with overwhelming historical evidence that facts necessary to put respondents on notice of their claims were disclosed shortly after the war, /17/ the court of appeals abandoned that line of argument /18/ and concluded that, in this situation, mere disclosure of facts could never suffice to start the running of the statute of limitations. /19/ Instead, the court demanded "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" (id. at 46a, 49a). The court found that authoritative statement in Congress's 1980 finding that "no sufficient inquiry ha(d) been made into" the internment (50 U.S.C. App. 1981 note Section 2(a)(3)), which "released the federal courts from the grasp of Korematsu and Hirabayashi" (86-298 Pet. App. 92a). /20/ There is no precedent for the notion that a statute of limitations may be tolled not only by continued concealment of facts, but also by the failure of the potential defendant to make a public confession of legal error. If the approach of the court of appeals is to be taken seriously, then there is really no such thing as a statute of limitations because a plaintiff may wait to file suit, not until the facts that would support a good-faith complaint are revealed, but until the defendant admits liability. Such a conclusion is no less outrageous as applied to lawsuits against the United States than as applied to any other litigant. It is specifically inconsistent with United States v. Kubrick, 444 U.S. 111 (1979), where the Court rejected a far more modest attempt to expand tolling doctrine in an action against the United States. In Kubrick, this Court 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 inquiry or its cause should receive identical treatment" (444 U.S. at 122), and held that the accrual of a claim is not tolled until the putative plaintiff learns that "his injury was legally blameworthy" (id. at 121). 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" (id. at 125). Under the reasoning of the court of appeals here, the running of the statute of limitations is tolled pending announcement by the United States of its own legal error, which the court viewed as an essential prerequisite to effective litigation of the claim. Thus the plaintiff need not only have reason to perceive a legal wrong -- he must be specifically informed of the wrong by the defendant. /21/ b. Even if one accepts the conceptual premise of the court of appeals that a statute of limitations may be tolled where a governmental confession of error is the only avenue leading to relief for meritorious claims of injury, it does not appear that this Court's decisions in Korematsu and Hirabayashi justify such a conclusion here. The linchpin of the court's analysis is its assertion that the decisions in Korematsu and Hirabayashi articulated a "nearly irrebuttable" "presumption of deference to the 'war-making branches'" regarding the military justification for the evacuation from the West Coast of Japanese-Americans (86-298 Pet. App. 12a). /22/ Thus, according to the court, a suit seeking compensation for property lost in the evacuation could not have survived a defense that simply cited Korematsu and Hirabayashi for the proposition that the events were mandated by military necessity (id. at 16a). The talismanic significance that the court of appeals ascribed to Korematsu and Hirabayashi, however, is unfounded. In the first place, neither Korematsu nor Hirabayashi was founded on or embranced the extreme kind of deference that the court of appeals posited. 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 this Court 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 imposed; it is quite another to claim that the Court declined to look at the facts and merely accepted the government's assertion that its conduct was justified. /23/ In the second place, neither Korematsu nor Hirabayashi "holds, or even remotely suggests, that military necessity also required that * * * property be taken" (86-298 Pet. App. 80a (Bork, J.)). /24/ To the contrary, in both decisions this Court emphasized the narrowness of its ruling -- which, in Hirabayashi, was limited to sustaining a "curfew order" (320 U.S. at 105) and, in Korematsu, was limited to "uphold(ing) (an) exclusion order as of the time it was made and when (it was) violated" (323 U.S. at 219). /25/ Moreover, it is no small step beyond the holdings of these cases to conclude that military necessity would also justify the taking of property without compensation in any situation incidental to the exclusion order. 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 /26/ 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)). /27/ In the final analysis, however, the misplaced reliance on Korematsu and Hirabayashi by the court of appeals is most vividly demonstrated by the cases that the court ignored. This Court began to sketch out the limits of the rulings in Korematsu and Hirabayashi on the same day that Korematsu was decided, when it held that Japanese-Americans whose loyalty had been established were entitled to "unconditional release" from relocation camps. Ex parte Endo, 323 U.S. 283, 304 (1944). Shortly thereafter, in Duncan v. Kahanamoku, 327 U.S. 304 (1946), the Court demonstrated that it was indeed 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 (the author or 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)). Indeed, during the entire period that the evacuation and exclusion orders were in effect the courts remained open to evacuees with civil claims -- even if they were enemy aliens. See Ex parte Kawato, 317 U.S. 69 (1942). This Court also demonstrated long ago that it would protect the rights of Japanese-Americans who lost property as a result of World War II measures. See Honda v. Clark, 386 U.S. 484 (1967) (suit by Japanese-Americans to recover funds seized under the Trading With the Enemy Act); cf. Oyama v. California, 332 U.S. 633 (1948); Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948). Finally, it is particularly relevant that, in 1952, this 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 enemy aliens would pose a "constitutional problem." Guessefeldt v. McGrath, 342 U.S. 308, 318-319 (1952). The decisions in Korematsu and Hirabayashi therefore do not indicate that respondents could not state viable Takings Clause claims until the political branches acknowledged the alleged weakness of the military justification for the wartime evacuation program. The extravagant significance that the court below gave to those decisions does not justify its attempt to escape the statute of limitations. c. What is perhaps most astonishing about the decision of the court of appeals is that, even if the tolling theory that the court has created had merit, a candid application of that theory still would not prevent the statute of limitations from having run. In 1976 (more than six years before the complaint in this case was filed), President Ford formally revoked the Executive Order under which the evacuation program had been carried out and officially proclaimed that "we should have known then (that) not only was that evacuation wrong, but (that) Japanese-Americans were and are loyal Americans." Proclamation No. 4417, 3 C.F.R. 9 (1977) (emphasis added). In contrast, all that Congress said in 1980 was that there was a need for "'inquiry'" and for "'study'" (86-298 Pet. App. 49a). Congress's statement, however, and not President Ford's proclamation four years earlier, is the "authoritative statement" (ibid.) that the court of appeals remarkably asserts "released the federal courts from the graps of Korematsu and Hirabayashi by indicating that deference was no longer due to the wartime judgment of military necessity" (id. at 92a). Plainly, if an authoritative statement by one of the political branches was needed before the statute of limitations could begin to run, President Ford's Proclamation "fills the need far more naturally" than the 1980 Act. It is equally clear that "(t)he only difficulty" that kept the court of appeals from acknowledging this obvious fact is that "the (Ford) statement is inconveniently early." 86-298 Pet. App. 78a n.1 (Bork, J.). CONCLUSION The petition for a writ of certiorari should be granted. 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 SEPTEMBER 1986 /1/ The materials that we would ordinarily include in an appendix to this petition have already been filed with the Court as an appendix to the petition in No. 86-298, Hohri v. United States, seeking review of the same judgment on different grounds. Accordingly, we will cite the relevant documents as they appear in that appendix. /2/ Respondents requested certification of a class consisting of the approximately 120,000 Japanese-Americans and resident Japanese aliens (or their descendants, if no longer living) who were involved in the relocation and internment program. The question of class certification was postponed until after resolution of petitioner's motion to dismiss. 86-298 Pet. App. 98a-99a & n.1. /3/ 28 U.S.C. 1346(a)(2), 1491. The claims in this case are for $10,000 or less (86-298 Pet. App. 118a n.19) and thus came within the jurisdiction of the district court under Section 1346(a)(2), known as the "Little Tucker Act" (see, e.g., 86-298 Pet. App. 61a). Claims for more than $10,000 are within the exclusive jurisdiction of the United States Claims Court under Section 1491. /4/ In asserting that evacuation was unnecessary, respondents relied on a number of documents, including three written during the war that called into question the military necessity for the evacuation. One of those documents, a memorandum prepared in January 1942 by Lt. Commander Kenneth Ringle of the Office of Naval Intelligence, opined that the "Japanese problem" had been magnified out of proportion, that 75% of American Japanese 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. C.A. App. 91-93. The other two memoranda, by FCC Chairman James Fly and FBI Director J. Edgar Hoover, questioned certain findings concerning ship-to-shore communications stated in reports of the Commanding General of the Western Defense Command to have occurred along the West Coast. See 86-298 Pet. App. 110a-112a. The district court found that the Ringle, Fly, and Hoover memoranda were published in 1949 in M. Grodzins, Americans Betrayed: Politics and the Japanese Evacuation (1949) (86-298 Pet. App. 130a-131a) and that "the events surrounding the evacuation and internment have been subject to intense scrutiny over the years and have produced a lengthy literature" (ibid. & n.26). Respondents also pointed to a number of documents that were apparently disclosed for the first time in the 1982 report of the Commission on Wartime Relocation and Internment of Civilians. In general, the district court found that these documents were either irrelevant to respondents' claims or corroborative of information already available. 86-298 Pet. App. 132a-133a. It discussed more specifically 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 had been published in Harper's Magazine in October 1942 -- should be called to this Court's attention in the briefs in Korematsu v. United States, 323 U.S. 214 (1944), and Hirabayashi v. United States, 320 U.S. 81 (1943). See 86-298 Pet. App. 113a-116a & n.15. With respect to the Ennis and Burling memoranda, the court concluded that because the "underlying documents" (i.e., the Ringle, Fly, and Hoover memoranda) had become public in the 1940s, 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." Id. at 113a-136a. /5/ In Korematsu and Hirabayashi this Court affirmed the conviction of two Japanese-Americans who had violated an exclusion order and a curfew order, respectively. /6/ Section 2(a)(3) of that Act is a congressional finding that "no sufficient inquiry has been made into" the internment. Section 4 is a directive to the Commission to review the facts and circumstances of the internment and accompanying military directives and to "recommend appropriate remedies." 50 U.S.C. App. 1981 note. /7/ Chief Judge Markey also explained (86-298 Pet. App. 59a-60a) why a comparison of the "except" clause in Section 1295(a)(2) with that in Section 1295(a)(1), dealing with patent appeals, did not support the majority's result, as the majority claimed. /8/ See Proclamation No. 4417, 3 C.F.R. 8 (1977) (calling the evacuation "wrong" and a "national mistake()"). The dissenters suggested that the majority had discounted the Proclamation because it was "inconveniently early" to preserve respondents' suit (86-298 Pet. App. 78a n.1). /9/ Judges Wright and Ginsburg stated that President Ford's 1976 Proclamation did not "provide() such a green light" because it "announce(d) merely that the internment policy was morally, not legally, wrong" (86-298 Pet. App. 93a n.2). /10/ In addition to its Section 1295(a)(2) jurisdiction to hear appeals from district court decisions under the Little Tucker Act, the Federal Circuit has exclusive jurisdiction to hear appeals from decisions of the Claims Court (see 28 U.S.C. 1295(a)(3)), which has concurrent jurisdiction over Little Tucker Act cases and exclusive jurisdiction over Tucker Act cases involving more than $10,000 (see 28 U.S.C. 1346(a)(2), 1491). See generally Bray v. United States, 785 F.2d at 991. /11/ H.R. Rep. 97-312, 97th Cong., 1st Sess. 19 (1981); S. Rep. 97-275, 97th Cong., 1st Sess. 6 (1981); H.R. Rep. 96-1300, 96th Cong., 2d Sess. 17 (1980); S. Rep. 96-304, 96th Cong., 1st Sess. 13 (1979); 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. 270 (1981) (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 Firedman); 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. 18, 38 (1981) (statement and testimony of Chief Judge Friedman) (hereinafter 1981 House Hearings); id. at 45 (remarks of Congressman Sawyer); Industrial Innovation and Patent and Copyright Law Amendments: Hearings on H.R. 6033, H.R. 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. 378-379 (1980) (statement of Maurice Rosenberg, Assistant Attorney General); id. at 708 (testimony of Chief Judge Friedman). /12/ 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" (H.R. Rep. 97-312, supra, at 42). /13/ In fact, at least in the case of quiet title actions, it appears that Congress was quite willing to centralize appeals in the Federal Circuit until then-Chief Judge Friedman suggested (and the Department of Justice agreed) that quiet title actions should be added to the except clause on the ground that the Court of Claims had not traditionally heard them. See 1981 House Hearings 213. It would be quite remarkable if Congress, in accepting that suggestion, had decided that regional circuit jurisdiction over quiet title action appeals was so important that the Federal Circuit not only would not hear all of them, but also would not hear any of them, even when the quiet title claim was joined with a Tucker Act claim. /14/ Congress's purpose to centralize Tucker Act appeals, of course, could also be served by bifurcating appeals, sending the Tucker Act issues to the Federal Circuit and the non-Tucker Act issues to the regional circuit (a procedure that would have required a different outcome below). See United States v. Mottaz, No. 85-546 (June 11, 1986), slip op. 14 n.11. In our view, however, as the "in whole or in part" language of Section 1295(a)(2) suggests, Congress did not intend such bifurcation. See generally, Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422 (Fed. Cir. 1984); 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). /15/ See, e.g., S. Rep. 97-275, supra, at 19; H.R. Rep. 97-312, supra, at 41. /16/ In 1947, the 80th Congress passed the American-Japanese Evacuation Claims Act, 50 U.S.C. App. 1981-1987, under which more than 26,500 Japanese-Americans in fact filed successful claims for compensation for property that they lost in "consequence of the evacuation or exclusion" (50 U.S.C. App. 1981(a)). /17/ The district court found that "all of the necessary facts have long been in the public domain" (86-298 Pet. App. 137a), and that what allegedly was concealed regarding the military necessity rationale for the evacuation "became public and (was) available to diligent plaintiffs from the late 1940's onward" (id. at 136a). See note 4, supra. /18/ The court of appeals acknowledged that the 1949 publication of a book citing and discussing the allegedly concealed evidence regarding military necessity "(a)t the very least * * * should have alerted (respondents) to the need to conduct further inquiries into the factual basis of their claims" (86-298 Pet. App. 44a n.60). Moreover, the court admitted that the allegedly concealed evidence did "not provide anything more than incremental evidence against the government's case" as presented in Hirabayashi and Korematsu (86-298 Pet. App. 46a n.62), and that there had always been available "a wealth of factual material attacking the factual predicates of the government's argument" (id. at 12a). /19/ The court of appeals did not foreclose the possibility that the government might produce, on remand, previously undisclosed material supporting its original assertion of military necessity for the internment program. In that eventuality, it said, the district court would be "free to find that the statute of limitations was never tolled in this case" (86-298 Pet. App. 47a n.63); but, if the government's failure to cite intelligence reports in Hirabayashi and Korematsu was caused by the nonexistence of such reports, then the government engaged in "fraudulent concealment" that could only be cured by a presidential or congressional pronouncement. It is difficult to see any relationship between that holding and the doctrine of fraudulent concealment as applied in any other case. See also note 23, infra. /20/ Of course, it requires the suspension of disbelief to maintain that Congress's "no adequate inquiry" finding was either necessary or sufficient to release courts from the grasp of Korematsu and Hirabayashi. It is this Court, not Congress, that overrules past constitutional decisions. If Federal courts are free to disregard Hirabayashi and Korematsu, it is because of changes in constitutional doctrine since the war, not because of congressional action. As the district court noted, diligent advocates have successfully challenged decisions of this Court in the past, and a suit to challenge Korematsu and Hirabayashi "could have been filed long ago" (86-298 Pet. App. 132a). In any event, as we show below, at no time would Korematsu and Kirabayashi have controlled the disposition of respondents' taking claims. /21/ The theory on which the court of appeals tolled the statute of limitations in this case also conflicts with decisions of the Federal Circuit that hold that a putative plaintiff's awareness that he has been injured "on grounds that he himself consider(s) to be wrong and improper" is all that is required to trigger the statute of limitations. Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985) (emphasis added), cert. denied, No. 84-1960 (Oct. 7, 1985); see also Japanese War Notes Claimants Ass'n v. United States, 373 F.2d 356 (Ct. Cl.), cert. denied, 389 U.S. 971 (1967). Regardless of how the jurisdictional issue in this case is resolved, this intercircuit conflict is especially significant since "all subsequent appeals of this case will have to be brought in the Federal Circuit" (86-298 Pet. App. 24a n.31). As a result, the decision below is likely to lead to the remarkable situation in which a conflict between the circuits develops in the context of a single case (see id. at 63a (Markey, C.J.) (Federal Circuit will be free to reach a result inconsistent with D.C. Circuit's decision); id. at 89a (Bork, J.) (same)). /22/ If the tolling theory that the court of appeals applied in this case were given its face value, it would have astonishing implications. It suggests a rule of judicial deference to claims of military necessity so powerful that courts will not reexamine what was done even when facts establish the absence of military necessity, or of any plausible belief in its existence (see 86-298 Pet. App. 75a (Bork, J.)). Of course, no such broad application of its reasoning was intended by the court of appeals. Rather, the decision below was designed only to deal "particularly and precisely with the special facts of an extraordinary episode of injustice" (86-298 Pet. App. 92a). /23/ There is no support in this Court's opinions in Korematsu and Hirabayashi for the suggestion by the court of appeals (86-298 Pet. App. 11a) that the decisions were influenced by a false belief that undisclosed "official intelligence analysis" supported the military rationale for the evacuation. To the contrary, "(t)he Justice Department, defending the exclusion before the Supreme Court, made no claim that there was identificable subversive activity." Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 50 (1982) (footnote omitted) (citing Brief for the United States at 11-12, Korematsu v. United States, supra). This Court 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). The Court concluded that "(t)he fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan" (ibid.). 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. Equally without warrant is the assertion by the court of appeals that in Korematsu "the majority opinion freely cited to (General DeWitt's) Final Report" for facts whose inaccuracy was known to the government (86-298 Pet. App. 14a n.20). A footnote in the government's brief had alerted the Court that the government relied on the Final Report only for "details concerning the actual evacuation and events that took place subsequent thereto" (Brief for the United States at 11 n.2, Korematsu; see also id. at 55 n.28), and no one contends that the Final Report was inaccurate as to those details. 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 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 86-298 Pet. App. 12a n.19). The Court certainly did not rely on General DeWitt's claims about ship-to-shore signaling by Japanese-Americans, which an earlier draft of the footnote would have specifically criticized as being in conflict with other information possessed by the Department of Justice (see id. at 13a-14a). /24/ In fact, the court of appeals itself did not rely on language in this Court's opinions in concluding that Korematsu and Kirabayashi would have precluded Takings Clause claims, but rather looked to the construction that "the Attorney General and Congress" supposedly placed on those decisions (86-298 Pet. App. 19a). There is, of course, no particular reason to assume that the courts were bound by any construction that the nonjudicial branches may have placed on the decisions of this Court (see id. at 81a n.3 (Bork, J.)). /25/ See also Korematsu, 323 U.S. at 222 (declining to pass on "momentous questions not contained within the framework of the pleadings or the evidence in this case"). /26/ The doctrine was also applied in Central Eureka Mining to hold that "temporary though severe restriction on use of the mines was justified by the exigency of war" because of the need to preserve resources. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432 (1982) (footnote omitted). /27/ Significantly, the government did not purport to "take" property from Japanese-Americans who were evacuated (86-298 Pet. App. 4a n.4), but offered to "'provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of property'" (id. at 104a, 138a). Based on that offer, respondents claimed that the government's liability for the property that they lost also arose under theories of contract and bailment (id. at 28a). The court of appeals correctly held that those claims could not be tolled, because the existence of a military justification for the evacuation is irrelevant to contract and bailment claims (see id. at 50a-51a).