Hohri v. U.S.

• Decision Date: 30 May 1986
• Docket Number: No. 84-5460,84-5460
• Citation: 753 U.S.App.D.C. 233,793 F.2d 304
• Parties: William HOHRI, et al., Appellants, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 304

793 F.2d 304

253 U.S.App.D.C. 233

William HOHRI, et al., Appellants, v. UNITED STATES of America.

No. 84-5460.

United States Court of Appeals, District of Columbia Circuit.

May 30, 1986.

Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., Washington, D.C., Jeffrey Axelrad, Barbara L. Herwig and Marc Johnston, Attys., Dept. of Justice, Washington, D.C., were on suggestion for rehearing en banc.

ON APPELLEE'S SUGGESTION FOR REHEARING EN BANC

Prior Opinion: 782 F.2d 227.

Before ROBINSON, Chief Judge; WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR, SILBERMAN and BUCKLEY, Circuit Judges.

ORDER

PER CURIAM.

Appellee's suggestion for rehearing en banc has been transmitted to the full court. A vote was requested. A majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that appellee's suggestion is denied.

Circuit Judges BORK, SCALIA, STARR, SILBERMAN and BUCKLEY would grant the suggestion for rehearing en banc. A statement is attached.

A statement of Circuit Judges J. SKELLY WRIGHT and GINSBURG is also attached.

BORK, Circuit Judge, with whom Circuit Judges SCALIA, STARR, SILBERMAN and BUCKLEY join, dissenting from denial of rehearing en banc:

This case should be reheard en banc. The panel majority has created an unprecedented rule of absolute deference to the political branches whenever "military necessity" is claimed, even where the claim is irrelevant and however spurious the claim is shown to be. The court did this, moreover, in a case in which it clearly had no jurisdiction. Both errors warrant reconsideration by the full court. I am in complete agreement with the criticisms of the majority opinion expressed in Chief Judge Markey's excellent dissent; I write separately to advance some additional grounds why the majority decision should not be allowed to stand.

Plaintiffs in this case are nineteen individuals, all of whom were either Japanese-Americans subjected to internment during World War II or the representatives of such internees. They sought money damages and a declaratory judgment on twenty-two claims, based upon a variety of alleged constitutional violations, torts, and breaches of contract and fiduciary duties. The district court dismissed each of these claims. The court of appeals affirmed, except as to one claim founded on the fifth amendment to the Constitution. With respect to that claim, virtually every step of the panel majority's reasoning either adopts broad and troublesome propositions or is plainly wrong.

I.

Plaintiffs alleged that the government internment program effected an uncompensated taking of their property. The statute of limitations requires that such claims be brought no later than six years after the right of action accrues. 28 U.S.C. Sec. 2401(a) (1982). The alleged taking occurred approximately forty years before this lawsuit was filed. The district court properly held that the statute of limitations barred the claim. That conclusion would seem inescapable, but this court reversed and remanded.

A.

In an effort to escape the statute of limitations that plainly bars this action, the panel majority engaged in contrived reasoning that creates a rule of absolute and permanent judicial deference to any claim of "military necessity." Judges owe deference to such claims, of course, particularly in wartime, but never before has a court enunciated a deference so great that it requires utter capitulation. So sweeping is the panel majority's new rule, the executive branch may remove American citizens from their homes and impound them in camps, solely on the grounds of race, and courts will not interfere, no matter what facts are shown. So powerful is this rule that courts will not reexamine what was done even when facts establishing the absence of military necessity, or of any plausible belief in its existence, become public and the period of military emergency is long past. So potent is the rule that it applies to associated actions or neglects as to which no claim of military necessity was made or could be made.

I am certain that the majority intended none of this but that is what their argument inevitably leads to. It is easily demonstrated that I do not overstate the rule the panel majority has inadvertently created.

To summarize the majority's reasoning: In Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), the Supreme Court upheld the racially-based curfew and the internment regulations. The Court did so because it deferred completely to the judgment of the military authorities that the programs were justified by military necessity. The Court's acceptance of the claim of military necessity for these purposes also had the effect of vitiating any future claims for compensation that might arise under the fifth amendment, since "[w]hen the government impinges on property rights in the midst of a military emergency, there is no compensable taking." Hohri v. United States, 782 F.2d 227, 251 (D.C.Cir.1986). However, according to plaintiffs' allegations, the government had concealed from the Supreme Court both internal memoranda disputing the necessity for the program and "the fact that there were no intelligence reports contradicting" those memoranda. Id. at 252. Had both the memoranda and the fact been disclosed, the outcomes in Hirabayashi and Korematsu would have been different and the finding of military necessity would not have been made. Therefore, the fraudulent concealment of the memoranda and the fact tolled the statute of limitations on the takings claim. Finally, since the Supreme Court had based its reasoning on an irrebuttable presumption of deference to the political branches and the military, "nothing less than an authoritative statement by one of the political branches, purporting to review the evidence when taken as a whole, could rebut" this presumption. Id. at 251. The required statement was made in 1980 when Congress created a Commission to investigate the internment. Thus, it was not until 1980 that the basis for this takings claim existed, and, consequently, not until 1980 that the statute of limitations began to run.

In the course of this reasoning, the panel majority remade important law in more than one way. Hirabayashi and Korematsu are read to reflect an absolute deference to military judgment, though the Supreme Court did not express any such extreme position. Moreover, military necessity is said to justify uncompensated takings of private property even in the United States and well outside the battle zone, regardless of the fact that no one ever claimed that the takings, as opposed to the internment, were necessary. Third, the fact that Hirabayashi and Korematsu were decided during the height of World War II, a circumstance that must certainly figure in calculating their weight as precedent during peacetime, is overlooked in order that their supposed rationale of absolute deference may be made permanent, unless and until one of the political branches admits the absence of military necessity. Surely we must recognize that courts are likely to accord a claim of military necessity greater deference during a major war than would be proper years later when the emergency is long past and a conventional takings claim is advanced. Finally, courts may not reconsider prior holdings in light of new evidence until "released ... from the grasp" of those holdings by Congress. Statement by Circuit Judges Wright and Ginsburg at 1. This means that in this context, at least, Congress may dictate the results of lawsuits to the courts.

The truth is that, had plaintiffs filed their claim earlier, they would have been able to use the relevant documents, most of which were already in the public domain, in building their case, as well as anything else accessible through discovery. As Chief Judge Markey pointed out, the essential facts for a legal challenge were well known by 1950. Hohri, 782 F.2d at 261-62 (Markey, C.J., dissenting). The government would have borne the burden of persuasion in establishing its affirmative defense and it would not have been able to meet that burden simply by citing Hirabayashi and Korematsu. See infra p. 8. It is only by announcing that no claim existed until Congress opened a new inquiry that the majority is able to justify tolling the statute of limitations until 1980.

In so doing, the panel has conducted something more than a mere historical analysis of the reasoning embodied in a pair of Court decisions from the 1940's. It has indicated that the doctrine of absolute deference applies today as well. As recently as 1979, we are told, plaintiffs had no case to bring, because the law laid down in Korematsu would have required automatic acquiescence to the expressed judgment of the political branches regardless of whatever factual evidence plaintiffs might have brought forth. Indeed, no set of facts in the public domain could possibly be sufficient to form the basis of a lawsuit in the absence of some sort of political retraction. ¹ The statement of Congress has therefore become a "crucial element" of the claim; without it, plaintiffs would have been unable to "survive a threshold motion to dismiss for failure to tender a claim that would advance beyond the pleading stage." Hohri, 782 F.2d at 249-50 & n. 57.

This means that a claim of military necessity, once made and upheld, may never be challenged in court, no matter what the facts are proved to be, until a political branch states that the claim was known to be baseless when made. ² To make matters worse, the majority describes its rule of absolute and permanent judicial deference to claims of military necessity as resting on "constitutional underpinnings." Id. at 251.

This new doctrine...