Hohri v. U.S.

• Citation: 847 F.2d 779
• Decision Date: 11 May 1988
• Docket Number: No. 87-1635,87-1635
• Parties: William HOHRI; Hannah Takagi Holmes; Chizuko Omori, Ind. and Rep. for Haruko Omori; Midori Kimura; Merry Omori; John Omori, Ind. and Rep. for Juro Omori; Gladyce Sumida; Kyoshiro Tokunaga; Tom Nakao; Harry Ueno; Edward Tokeshi; Rentaro Hashimoto; Nelson Kitsuse, Ind. and Rep. for Takeshi Kitsuse; Eddie Sato; Sam Ozaki, Ind. and Rep. for Kyujiro Ozaki; Kumao Toda, Ind. and Rep. for Suketaro Toda; Kaz Oshiki; George R. Ikeda; Tim Takayoshi; Cathy Takayoshi; National Council for Japanese Amer. Redress, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 779

847 F.2d 779

William HOHRI; Hannah Takagi Holmes; Chizuko Omori, Ind.

and Rep. for Haruko Omori; Midori Kimura; Merry Omori;

John Omori, Ind. and Rep. for Juro Omori; Gladyce Sumida;

Kyoshiro Tokunaga; Tom Nakao; Harry Ueno; Edward Tokeshi;

Rentaro Hashimoto; Nelson Kitsuse, Ind. and Rep. for

Takeshi Kitsuse; Eddie Sato; Sam Ozaki, Ind. and Rep. for

Kyujiro Ozaki; Kumao Toda, Ind. and Rep. for Suketaro Toda;

Kaz Oshiki; George R. Ikeda; Tim Takayoshi; Cathy

Takayoshi; National Council for Japanese Amer. Redress, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

No. 87-1635.

United States Court of Appeals,

Federal Circuit.

May 11, 1988.

Appealed from: U.S. District Court for the District of Columbia; Oberdorfer, Judge.

Benjamin L. Zelenko, Landis, Cohen, Rauh and Zelenko, Washington, D.C., argued for plaintiffs-appellants. With him on the brief were B. Michael Rauh and Martin Shulman.

Jay S. Bybee, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Jeffrey Axelrad, Director, Torts Branch and Barbara L. Herwig.

Before RICH and NIES, Circuit Judges, and BALDWIN, Senior Circuit Judge.

PER CURIAM.

This appeal comes to this court following the decision of the Supreme Court in United States v. Hohri, 482 U.S. ----, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (vacating judgment of District of Columbia Circuit and remanding with instructions to transfer to this court pursuant to 28 U.S.C. Sec. 1631 (1982)). In Hohri, the Supreme Court held that a case which presents both a nontax claim under the "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2) (1982), and a claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) (1982), as here, may be appealed only to the Court of Appeals for the Federal Circuit.

The appeal here is from the judgment of the United States District Court for the District of Columbia, 586 F.Supp. 769 (D.D.C.1984) (Oberdorfer, J.), dismissing the claims of nineteen individuals and an organization of Japanese-Americans which sought damages and declaratory relief for injuries resulting from the internment of Japanese-Americans during World War II. The district court held, inter alia, that appellants' claims were barred by applicable statutes of limitations.

Each of the numerous issues raised to this court is fully addressed in the opinion of Judge Oberdorfer. After a meticulous review of that opinion, we are unpersuaded of any error. We see no need to restate or elaborate on the district court's careful and scholarly analysis, nor to burden appellants with further delay. Accordingly, we affirm for the reasons stated in the district court opinion.

AFFIRMED.

BALDWIN, Senior Circuit Judge, dissenting-in-part.

The majority adopts, in toto, the District Court's opinion, Hohri v. United States 586 F.Supp. 769 (D.D.C.1984). Although I agree with much of what the trial judge says, I respectfully dissent because I believe he erred in concluding that appellants' takings claims are barred by the statute of limitations.

Appellants' claims are dismissed under rule 12(b)(1), for lack of subject matter jurisdiction. In reviewing a dismissal under this rule, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Even if it "appear[s] on the face of the pleadings that a recovery is very remote and unlikely," id., the motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Thus, in reviewing the trial judge's decision, this court is obliged to review independently his application of the law to the undisputed facts in the historical record and the pleadings. ¹

The trial judge correctly determined that appellants had stated a takings claim, and that the portion of appellants' takings claims concerning constitutional rights other than property rights were unfounded. 586 F.Supp. at 783. I believe, however, that the trial judge incorrectly decided that appellants' remaining takings claims were barred by the applicable six year statute of limitations. 28 U.S.C. Sec. 2401(a) (1982). ² The trial judge rejected appellants' contention that the statute of limitations was tolled as a result of the government's fraudulent concealment of information relating to the military necessity for relocating and interning Japanese-Americans during World War II. 586 F.Supp. at 786-91. Instead, he found that appellants failed to exercise due diligence in asserting their claims. Id. at 790-91. He found that a reasonably diligent plaintiff would have discovered sufficient evidence to state a claim as early as the late 1940's. Id. I cannot agree that the government's fraudulent concealment of vital information did not toll the statute.

The statute of limitations to which appellants' claims are subject is enumerated in 28 U.S.C. Sec. 2401(a) (1982):

Every 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. [Emphasis added]

The question, therefore, is when appellants' right of action first "accrued." The trial judge decided that appellants' claims accrued, at the latest, some time in the late 1940's, following publication of the Ringle, Fly, and Hoover documents. 586 F.Supp. at 790.

As a general rule, a statute of limitations is tolled where a defendant fraudulently or deliberately conceals material facts relevant to a plaintiff's claim, Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Korody-Colyer Corp. v. General Motors Corp., 828 F.2d 1572, 1576-78 (Fed.Cir.1987); cf. Albert v. Kevex Corp., 729 F.2d 757, 763 (Fed.Cir.1984), provided the plaintiff could not, through the exercise of due diligence, have discovered the basis of the claim. Holmberg, 327 U.S. at 397, 66 S.Ct. at 585. This doctrine is as applicable to the United States as to any defendant. See Welcker v. United States, 752 F.2d 1577, 1580 (Fed.Cir.1985); Japanese War Notes Claimants Ass'n of the Philippines, Inc. v. United States, 373 F.2d 356, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). As the trial judge pointed out, 586 F.Supp. at 787-88, the parties do not dispute that appellee concealed various intelligence reports which contradicted the claim of military necessity raised in Hirabayashi and Korematsu. The parties do dispute, however, the effect this concealment had on the accrual of appellants' claims, and the duration of the effective concealment of sufficient matter to delay such accrual.

Appellants argue that their claims did not accrue until the completion of work by the Commission on Wartime Relocation and Internment of Civilians (CWRIC), established by Pub.L. No. 96-317, 94 Stat. 964, 96th Cong., 2d Sess. (1980), and the publication of the CWRIC Report of its investigations entitled Personal Justice Denied in 1982. Appellants' position is that the Supreme Court erected an insurmountable legal barrier with its decisions 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), when it upheld the internment policy in deference to the military. This barrier could be removed they assert only by an affirmative statement by one of the "war-making" branches that military necessity did not require the internment policy. They argue that the creation of CWRIC and the publication of Personal Justice Denied is the first event constituting such a statement. This conclusion is premised upon the disclosure in Personal Justice Denied that the government fraudulently concealed significant and vital information concerning its role in the Korematsu and Hirabayashi decisions. Appellants say that this fraudulent behavior precluded them from seeking relief in the courts because the level of deference shown by the Supreme Court in Korematsu and Hirabayashi to military decision making rendered any claim virtually frivolous. Thus, the statute of limitations should, they assert, be tolled until 1980 or 1982.

In opposition, appellee asserts that appellants' claims accrued at the time of the taking because that is when appellants knew of the injury and its cause. In the alternative, appellee argues appellants' claims accrued at one of several later dates: (1) when the Ringle, Fly, and Hoover documents first appeared; (2) when other books about the interning of Japanese-Americans appeared in the 1950's; or (3) at the latest, when President Ford signed Presidential Proclamation 4417 in 1976 declaring the incident a "mistake." The basis for this position is that the facts concealed concerned a potential affirmative defense of military necessity and not the appellants' cause of action. This is, as the trial judge realized, a mere technical distinction, 586 F.Supp. at 787, especially where, as here, the Supreme Court sanctioned this affirmative defense as a bar to cases questioning the propriety of the internment policy. Korematsu, 323 U.S. at 218, 65 S.Ct. at 195, quoting Hirabayashi, 320 U.S. at 99, 63 S.Ct. at 1385, ("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, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it."). ³ Appellee's assessment of the impact of Hirabayashi and Korematsu is a faulty one. These cases had the effect of validating the exclusion orders in toto as...