Hohri v. United States

Decision Date17 May 1984
Docket NumberCiv. A. No. 83-0750.
Citation586 F. Supp. 769
PartiesWilliam HOHRI, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Columbia



Benjamin L. Zelenko, B. Michael Rauh, Ellen Godbey Carson, Landis, Cohen, Singman & Rauh, Washington, D.C., for plaintiffs.

J. Paul McGrath, Asst. Atty. Gen., Richard K. Willard, Acting Asst. Atty. Gen., Jeffrey Axelrad, Atty., Torts Branch, Civil Div., Dept. of Justice, Stanley E. Harris, Joseph E. diGenova, U.S. Attys., Washington, D.C., for defendant.


OBERDORFER, District Judge.

During World War II, the United States government removed some 120,000 American citizens and residents of Japanese ancestry from their West Coast homes and placed them in internment camps for up to four years. The stated reason for this unprecedented policy of evacuation and incarceration was "military necessity": the Nation was at war with Japan, and military officials feared that members of the American Japanese population would engage in sabotage, espionage, and other activities harmful to the war effort.

In 1983, nineteen individuals who were interned during the war or descended from internees and an organization of Japanese Americans filed this suit against the United States.1 They allege that the program of exclusion and internment was wrongful and seek compensation for injuries suffered as a result of it. They claim that there was no military necessity for the program and that it was instead motivated by "race prejudice, war hysteria, and a failure of political leadership."2 Furthermore, they allege that government and military officials were aware of this lack of military justification but conspired to suppress that information when the program was implemented, when it was later challenged in court, and, in fact, almost to the present. Plaintiffs claim to have suffered deprivation of their constitutional rights, loss of homes, businesses, educations, and careers, physical and psychological injuries, including loss of life, destruction of family ties, and personal stigma. The complaint contains twenty-two counts; each plaintiff seeks compensatory damages for each tort claim and $10,000 for each cause of action not sounding in tort.3

The defendant United States has moved to dismiss plaintiffs' claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. That motion proceeds on three grounds. First, defendant asserts that plaintiffs' action is barred by the applicable statutes of limitation. Second, defendant alleges that the American-Japanese Evacuation Claims Act, 50 U.S.C.App. ?? 1981-1987, is the exclusive remedy for claims arising from the internment program. Third, defendant asserts that there is no constitutional provision, statute, or regulation that waives the federal government's sovereign immunity against these claims for money damages.4

Plaintiffs oppose the motion to dismiss. They claim that alleged suppression by defendant of information contradicting the military necessity rationale constituted fraud sufficient to toll the running of the statutes of limitation. They dispute that the Evacuation Claims Act is exclusive of other remedies, because it fails to comport with constitutional standards of due process, just compensation, and equal protection. Finally, they point to several statutes and constitutional provisions which they claim act to waive the federal government's sovereign immunity against this suit.


In evaluating a motion to dismiss under Rule 12(b)(1), a court must construe the allegations of the complaint "favorably to the pleader." Walker v. Jones, 733 F.2d 923 at 925 (D.C.Cir. May 1, 1984) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). In addition, a court may consider material outside the pleadings, such as official documents, matters of general public record, and historical publications. See 5 C. Wright & A. Miller, Federal Practice and Procedure ? 1350, at 549-50 (1969). The following recitation of the facts is drawn from plaintiffs' complaint, official documents attached as exhibits to the complaint, the 1982 report of the Commission on Wartime Relocation and Internment of Civilians,5 and other published historical accounts cited by the parties.

The use of official historic documents is particularly appropriate here. They relate to events which occurred more than forty years ago. Most of the actors who might give better evidence are no longer living. It is unlikely that the historical facts recounted in the documents can ever be the subject of a material dispute. Moreover, although the government could offer the documents to support its defense, they are more embarrassing to the government than self-serving. Accordingly, the documents have been considered in ruling on this motion to dismiss for lack of subject matter jurisdiction. See Capitol Industries-EMI, Inc. v. Bennett, 681 F.2d 1107, 1118 n. 29 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982).


On December 7, 1941, a carrier-based force of Japanese aircraft attacked the American fleet at Pearl Harbor, inflicting heavy losses. The next day, the United States declared war on Japan. Steps to control the activities of Japanese nationals in the United States began immediately. On December 8, President Roosevelt proclaimed that residents of Japanese nationality were "alien enemies." Proclamation No. 2525, 6 Fed.Reg. 6321 (1941). The proclamation authorized the Attorney General to regulate their conduct and to apprehend any such persons "deemed dangerous to the public health or safety of the United States."6 Pursuant to other proclamations, cameras, weapons, radio transmitters, and other instruments of possible sabotage and espionage that belonged to enemy aliens were confiscated. Internment of alien enemies ?€” Japanese, German, and Italian ?€” who were believed to be dangerous began immediately. In late January and early February, the Attorney General ordered that enemy aliens could not enter some 84 designated areas of military significance on the West Coast.

These restrictions, however, did not satisfy Lieutenant General John L. DeWitt, who as Commanding General of the Western Defense Command was responsible for West Coast security. The general urged that military necessity required increasing the geographic area of exclusion and barring American citizens, as well as aliens, of Japanese descent. In this, he was supported by public officials and popular opinion on the West Coast, where there was a history of antagonism toward the Japanese. Consultation among members of the Western Defense Command, the War Department, and the Justice Department culminated with a formal recommendation by General DeWitt to Secretary of War Henry L. Stimson "for the evacuation of Japanese and other subversive persons from the Pacific Coast." Final Recommendation of the Commanding General, Western Defense Command and Fourth Army to the Secretary of War (Feb. 14, 1942) (Complaint, Exhibit G). On February 18, officials of the War and Justice Departments met to draft such an order, and it was signed by President Roosevelt on February 19 as Executive Order 9066, 7 Fed.Reg. 1407 (Complaint, Exhibit H).

Executive Order 9066 authorized the Secretary of War and military commanders to whom he delegated authority to prescribe "military areas" from which any persons could be excluded.7 The next day, Secretary of War Stimson delegated his authority under Executive Order 9066 to General DeWitt. Within ten days, DeWitt designated the western halves of California, Oregon, and Washington and the southern third of Arizona as "military areas" from which all persons of Japanese ancestry were to be removed. Later, he expanded the evacuation area to include the rest of California.

Relocation was tried first on a voluntary basis. Japanese Americans were instructed to move outside the military areas but were free to go wherever they chose. At the same time, curfews and reporting requirements were imposed. The voluntary program quickly proved unworkable. Objections to receiving "potential saboteurs and spies" were raised by officials of interior western states where evacuees resettled. Movement was slow, since many evacuees had trouble selling homes and businesses and finding new housing and means of livelihood. It was soon determined that relocation should be mandatory.

To that end, President Roosevelt issued Executive Order 9102, 7 Fed.Reg. 2165 (Mar. 20, 1942), which established the War Relocation Authority (WRA) and authorized it "to provide for the removal from designated areas of persons whose removal is necessary in the interest of national security ...." Under the new evacuation plan, the Army was to remove the Japanese Americans from designated military areas to temporary assembly centers, where they would be assigned to permanent camps run by the WRA. The relocation began near Seattle on March 24. By August 7, some 108 Civilian Exclusion Orders had been issued, resulting in the evacuation of about 92,000 people to assembly centers, where they remained for an average of about 100 days before moving to relocation camps. Some 70 percent were citizens of the United States.

Evacuees were given as little as forty-eight hours notice of an impending evacuation. According to the exclusion orders, government-run "Civil Control Stations" were to "provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of property including: real estate, business and professional equipment, buildings, household goods, boats, automobiles, livestock, etc." In addition, the government stated that it would provide for storage at the owner's risk of substantial household items and other belongings packed in crates. See, e.g., Civil Exclusion Order No. 5 (Apr. 1, 1942) ...

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