782 F.2d 227 (D.C. Cir. 1986), 84-5460, Hohri v. United States

Docket Nº:84-5460.
Citation:782 F.2d 227
Party Name:William HOHRI, et al., Appellants v. UNITED STATES of America.
Case Date:January 21, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 227

782 F.2d 227 (D.C. Cir. 1986)

William HOHRI, et al., Appellants

v.

UNITED STATES of America.

No. 84-5460.

United States Court of Appeals, District of Columbia Circuit

January 21, 1986

Argued Sept. 24, 1985.

As Amended Jan. 28 and Feb. 12, 1986.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-750).

Benjamin L. Zelenko, Washington, D.C., with whom B. Michael Rauh and Ellen Godbey Carson, Washington, D.C., were on the brief, for appellants.

Jeffrey Axelrad, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., and Joseph E. diGenova, U.S. Atty., Washington, D.C., were on the brief, for appellee.

George Timothy Gojio Washington, D.C., was on the brief for amicus curiae Japanese American Citizens League, urging reversal.

Before WRIGHT and GINSBURG, Circuit Judges, and MARKEY, [*] Chief Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the court filed by Circuit Judge WRIGHT.

Dissenting opinion filed by Chief Judge MARKEY.

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J. SKELLY WRIGHT, Circuit Judge:

In the spring of 1942 the government of the United States forcibly removed some 120,000 of its Japanese-American citizens from their homes and placed them in internment camps. There they remained for as long as four years. When the constitutionality of this action was challenged in the Supreme Court the government justified its actions on the grounds of "military necessity." The Supreme Court deferred. Nearly forty years later, a congressional commission concluded that the government's asserted justification was without foundation. It is now alleged that this fact was concealed from the Supreme Court when it rendered its historic decision in Korematsu v. United States. Yet today, now that the truth can be known, the government says that the time for justice has passed. We cannot agree.

This suit was brought by nineteen individuals, former internees or their representatives, against the United States. 1 They seek money damages and a declaratory judgment on twenty-two claims, based upon a variety of constitutional violations, torts, and breach of contract and fiduciary duties. The United States moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In support of its motion the United States cited the applicable statutes of limitations, sovereign immunity, and the alleged exclusivity of the American-Japanese Evacuation Claims Act. The District Court granted appellee's motion to dismiss. Hohri v. United States, 586 F.Supp. 769 (D.D.C.1984) (Hohri ). We now affirm in part and reverse in part, remanding the Takings Clause claims of those appellants who never received awards under the Claims Act for further proceedings.

I. BACKGROUND

  1. Exclusion and Internment

    In the wake of Pearl Harbor the United States immediately took steps to improve security on the West Coast. Initially, attention focused on the activities of Japanese nationals. See Proclamation No. 2525, 6 Fed.Reg. 6321 (1941). Internment of these "enemy aliens" began at once. These precautions, however, did not satisfy the Commanding General of the Western Defense Command, Lt. General John L. DeWitt. In his Final Recommendation of the Commanding General, Western Defense Command and Fourth Army, to the Secretary of War (Feb. 14, 1942) (Final Recommendation ), he urged the evacuation of all Japanese-American citizens from the Pacific coast. Joint Appendix (JA) 109-110. DeWitt reasoned:

    The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become "Americanized", the racial strains are undiluted * * *. There are indications that these [Japanese-Americans] are organized and ready for concerted action at a favorable opportunity. The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.

    Final Recommendation, JA 109.

    On February 18, 1942 DeWitt received legal authority to carry out his policy of racial exclusion. On that date the President signed Executive Order 9066, authorizing the Secretary of War or his designees to prescribe "military areas" from which any person could be excluded. 7 Fed.Reg. 1407, JA 112. 2 DeWitt designated

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    California, western Oregon and Washington, and southern Arizona as "military areas." In so doing, he declared that all persons of Japanese ancestry were to be excluded from these areas. At first, relocation proceeded on a voluntary basis. 3 When this proved inefficient, compulsion replaced exhortation.

    The evacuees were given as little as forty-eight hours notice of their impending removal. They were allowed to bring only what they could carry. 4 In the assembly centers--racetracks and fairgrounds--the evacuees were placed in mass barracks housing 600 to 800 people. Beginning in May 1942 they were transferred to permanent relocation centers: camps surrounded by barbed wire and guarded by military police. They were housed one or two families to a tar-paper room. They ate and bathed in mass facilities.

    The majority of the evacuees remained in these camps for the duration of the war. 5 According to the Commission on Wartime Relocation and Internment of Civilians (CWRIC), 6 detention continued after military authorities concluded that there was no further military justification for the internment. 7 Motivated by a desire to capture Western votes in the 1944 election, President Roosevelt refused to take any "drastic" action. REPORT OF THE COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED 229 (1982) (PERSONAL JUSTICE DENIED). Finally, on November 10, 1944 the cabinet decided to end the exclusion; the War Department publicly rescinded the exclusion order on December 17, 1944. Administrative delay, however, prolonged detention for many. It was not until March 1946 that the last camp closed.

  2. Deference and Concealment

    In Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), the Supreme Court considered the constitutionality of the curfew regulations imposed pursuant to Executive Order 9066. In Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), the Court considered the constitutionality of the decision to exclude Japanese-Americans from the West Coast. In both cases the Court based its decision on the government's allegations of military necessity. In these two cases the Court erected a virtually insurmountable presumption of deference to the judgment of the military authorities. Appellants allege, however, that the application of this deferential standard was marred by the fraudulent concealment of evidence indicating that there was no rational

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    basis for the mass evacuation program.

    1. Hirabayashi: concealment of evidence and deference to the judgment of the "war-making branches." The Department of Justice's basic argument in Hirabayashi rested on two propositions. First, various cultural characteristics suggested that there was a serious potential for disloyalty by some members of the Japanese-American community. Hirabayashi, Brief for the United States at 18-31. 8 Second, under the exigencies imposed by the military emergency, it was impossible to segregate the loyal from the disloyal. Id. at 61-63. This double-barrelled argument proved decisive. After reviewing the factors suggesting that members of the Japanese-American community might be disloyal, Chief Justice Stone concluded:

    Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with * * *.

    320 U.S. at 99, 63 S.Ct. at 1385. The Court, however, did not purport to make an independent assessment of the evidence. As the Chief Justice indicated, the Court's decision rested first and foremost on a pivotal constitutional assumption: that where matters of national security are at issue, the Court must defer to the judgment of the military and of Congress 9 as the "war-making branches."

    As the Justice Department prepared its brief, however, Edward Ennis, the Director of the Alien Enemy Control Unit, came into possession of the intelligence work of one Lt. Commander Kenneth D. Ringle, an expert on Japanese intelligence in the Office of Naval Intelligence. 10 Ringle had

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    reached conclusions directly contradicting the two key premises in the government's argument. Ringle argued that the cultural characteristics of the Japanese-Americans had not resulted in a high risk of disloyalty by members of that group. 11 Moreover, Ringle expressly concluded that individualized determinations could be made expeditiously:

    [T]he entire "Japanese Problem" has been magnified out of its true proportion, largely because of the physical characteristics of the [Japanese] people * * *. [I]t should be handled on the basis of the individual, regardless of citizenship, and not on a racial basis.

    K. Ringle, Report on the Japanese Question 3 (Jan. 26, 1942) (Ringle Report ), JA 93 (emphasis in original). 12

    Ennis knew that Ringle's views could not be dismissed as those of a solitary dissident, for Ennis had been informed that Ringle's views were shared by his superiors at Naval Intelligence. E. Ennis, Memorandum for the Solicitor General (April 30, 1943) (Ennis I ) at 2, JA 116. Ennis also knew...

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