when there is an actual physical invasion of the property than when the interference took the form of a public program. Still, physical invasion is not essential; a statute that substantially furthers important public policies may still so frustrate distinct investment-backed expectations as to amount to a taking. See id. at 123-28 (reviewing taking cases); Foster v. United States, 221 Ct. Cl. 412, 607 F.2d 943 (Ct. Cl. 1979) (taking occurred when owners of reserved mineral interest in land they gave to government were denied access to property for mining purposes.)
Defendant suggests that there is no takings claim here because the government's actions were based on a perceived need to protect the national security. During times of imminent peril, the government is empowered to destroy an individual's property without compensation where that action might result in saving the lives and property of many. See United States v. Caltex, 344 U.S. 149, 97 L. Ed. 157, 73 S. Ct. 200 (1952); United States v. Pacific Railroad Co., 120 U.S. 227, 30 L. Ed. 634, 7 S. Ct. 490 (1887). Common examples of this authority would be the demolition of neighboring structures to fight a city fire, or, of more relevance to this case, the destruction of bridges or refineries to impede the advance of enemy forces. The sovereign is not free to take any property without compensation that may be needed for the war effort; the element of imminent peril is required.
The issues posed by plaintiffs' takings claim therefore, are whether a taking occurred and whether the taking, if any, was the product of action necessitated by immediate peril. Plaintiffs, of course, allege that there was no military necessity for the evacuation and internment and that those in charge were aware of that fact. Considering plaintiffs' allegations of fact in the most favorable light, as required with a motion to dismiss, the Court must conclude that plaintiffs have stated a takings claim.
Yet that conclusion does not end the inquiry. The government contends that this Court does not have jurisdiction to hear the takings claim, or, in fact, any of plaintiffs' claims, because Congress intended that the reimbursement mechanism created by the American-Japanese Evacuation Claims Act, 50 U.S.C. App. §§ 1981-1987, should be the exclusive remedy for monetary claims of those affected by the evacuation program.
The Act was passed in 1948 for the purpose of adjudicating "claims of persons of Japanese ancestry against the United States for losses arising out of their forced evacuation from the west coast, Alaska, and Hawaii during World War II." H.R. Rep. No. 732, 80th Cong., 2d Sess., reprinted in 1948 U.S. Code Cong. & Ad. News 2297, 2297. Under the statute, which was amended in 1951 and 1956, the Attorney General was empowered to settle claims for up to $100,000 for damage to or loss of real or personal property that was a "reasonable and natural consequence" of the evacuation. 50 U.S.C. App. §§ 1981(a), 1984(a). If a compromise could not be reached, the Court of Claims had jurisdiction to determine the claim. Id. § 1984(b). Not compensable under the Act were losses resulting from death or personal injury, personal inconvenience, physical hardship, or mental suffering; loss of anticipated profits or earnings; loss of property vested in the United States pursuant to the Trading With the Enemy Act; and losses arising from certain statutory actions of government agencies. The Act also excluded claims by individuals deported to Japan or who were not actually residing in the United States on December 7, 1941. Id. § 1982(b). The Act set a deadline of January 3, 1950, for the presentation of claims. Id. § 1982(a). The payment of an award under the Act was "final and conclusive for all purposes, notwithstanding any other provision of law to the contrary" and was a "full discharge of the United States . . . with respect to all claims arising out of the same subject matter." Id. § 1984(d). Over 26,000 claims were filed; approximately $37 million was distributed by the government. Personal Justice Denied at 118.
Defendant argues that the Act is a comprehensive system which Congress designed with claims similar to plaintiffs' in mind. Therefore, defendant asserts, the Court does not have subject matter jurisdiction over plaintiffs' claims; Congress placed that jurisdiction solely in the hands of the Attorney General and the Court of Claims.
Defendant reads too much into the Act. The intent of Congress, as expressed by the language of the statute, was to compensate "for damage to or loss of real and personal property," id. § 1981; the statute carefully excludes claims that are not directly related thereto. It may be true, as defendant states, that the Attorney General and the Court of Claims took a broad approach to defining compensable claims. But that is not evidence of Congress' intent. The Act does not bar this Court from jurisdiction over all of plaintiffs' claims.
Whether the Act was intended to be the sole remedy for claims of property loss is a more difficult question. Here, the Supreme Court's teachings in Brown v. General Services Administration, 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), are instructive. The question in Brown was whether Congress intended Title VII of the Civil Rights Act of 1964 to be the exclusive remedy for a federal employee complaining of job-related discrimination. Congress failed to state the answer explicitly, so the Court looked to other evidence of Congress' intent. First, it noted that at the time Congress extended Title VII to federal workers, Congress believed, rightly or wrongly, that federal employees had no other remedy to fight employment discrimination. The Court found in that perception an indication of intent to create an exclusive remedy. In addition, the Court found that the "structure" of the Act was indicative of exclusivity: "The balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner's contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief." Id. at 832. It has often been held that a precisely drawn, detailed statute preempts more general remedies.
Here, there is a detailed statute, finely tuned by amendment, and enacted by a Congress that may have believed that no other remedy was available to those who had been evacuated. See H.R. Rep. No. 732, 80th Cong., 2d Sess., reprinted in 1948 U.S. Code Cong. & Ad. News, 2297, 2299. ("The only clear recourse which the evacuees now have, through the passage of private relief bills, is totally impracticable.") (Letter from Interior Secretary J. A. Krug to House Speaker Joseph W. Martin, Jr.) Yet the system Congress created, while detailed, is not complete; it does not reimburse individuals for all property claims for which they might recover under the takings clause. For example, there has been no showing here that claimants were paid for the value of the use of property denied to them during the period of their internment. But such lost value is recoverable when a "temporary" taking occurs. Compare 50 U.S.C. App. § 1981 with Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 93 L. Ed. 1765, 69 S. Ct. 1434 (1949). Nor were claimants paid for interest that accrued between the time of their loss and the time of payment. Yet interest is also recoverable under the takings clause. Compare Claim of George M. Kawaguchi, 1 Adjudications of the Attorney General 14, 19-20 (1956), with Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 306, 67 L. Ed. 664, 43 S. Ct. 354 (1923). To bar constitutional claims from the courts is an extraordinary step which courts are not willing to take absent a clear and convincing expression of congressional intent. See Johnson v. Robison, 415 U.S. 361, 366-67, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974).
The question of exclusivity need not be reached here, however, because another defense raised by the government -- the running of the statute of limitations -- requires dismissal of the takings claim. The lifespan of plaintiffs' takings claim is controlled by 28 U.S.C. § 2401(a), which states that, except where specifically provided elsewhere,
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.
The Court has no jurisdiction to consider claims that fall outside the six-year period. Japanese War Notes Claimants Association of the Philippines, Inc. v. United States, 178 Ct. Cl. 630, 373 F.2d 356, 358 (Ct. Cl.), cert. denied, 389 U.S. 971, 19 L. Ed. 2d 461, 88 S. Ct. 466 (1967); see also Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981).
The length of a statute of limitations is a product of a legislative weighing of competing claims of fairness -- the need of plaintiffs for a reasonable amount of time within which to present their claims, and the right of defendants to be free of stale claims. Statutes of limitation also protect both the Court and the defendant from cases where the loss of evidence -- by death or disappearance of witnesses, fading memories, or disappearance of documents -- may frustrate the search for truth. United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979).
This suit was filed on March 16, 1983. A right of action normally accrues at the time the underlying incident occurred, and that in essence is the rule defendant wants applied here. The alleged taking of property occurred during World War II; under defendant's theory, the six-year period would have begun to run then and would have expired well before this suit was filed.
Plaintiffs assert, however, that defendant fraudulently concealed information essential to their cause of action. They claim that this information was not revealed until the publication in December 1982 of Personal Justice Denied, the report of the Commission on Wartime Relocation and Internment of Civilians. Plaintiffs argue that the running of the statute was tolled until that date, so that their suit would fall well within the six-year period.
Plaintiffs' argument relies heavily on this Circuit's decision in Richards v. Mileski, 213 U.S. App. D.C. 220, 662 F.2d 65 (D.C. Cir. 1981). The plaintiff Richards was a career employee with the United States Information Agency who resigned under duress in 1955. He brought suit 24 years later, complaining that defendants, six former federal officials, had knowingly and maliciously used false information to obtain his resignation. Defendants did not tell plaintiff in 1955 that they had concocted the charges that led to his resignation; plaintiff did not discover that fact until 1978, when a request under the Freedom of Information Act produced documents revealing defendants' culpability. Defendants' motion to dismiss on statute of limitations grounds was granted. The Court of Appeals reversed, holding that where a defendant conceals facts giving rise to the plaintiff's claim -- here that defendants had made false accusations against plaintiff -- the statute is tolled until the plaintiff, employing due diligence, could have discovered the facts that were fraudulently concealed. Id. at 69-70.
Plaintiffs do not argue that they were unaware during the war that they had lost their property or that the loss resulted from the government's program of evacuation and internment. Rather, they claim that had they brought suit when the property was lost, the suit would have foundered upon the government's defense that evacuation and internment were required by military necessity. Indeed, plaintiffs argue that the Supreme Court's "finding" of military necessity in Korematsu practically precluded any future challenge to the government's actions. The issue, therefore, under plaintiffs' theory of the case, is this: at what time were sufficient facts generally known about the evacuation and internment so that plaintiffs, using due diligence, could have conscientiously challenged the military necessity finding.
Plaintiffs maintain that sufficient information was not available until 1982 when the Commission pulled together the facts which allegedly impeach that finding.
The government urges adoption of a theory of accrual much narrower than the holding in Richards. It claims that Richards involved individual defendants, and that its fraudulent concealment holding does not necessarily apply to the United States. Instead, defendant argues, the most liberal tolling doctrine applicable to the United States is that set out in United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). In Kubrick, a medical malpractice suit brought under the Federal Tort Claims Act, the Supreme Court held that the Act's two-year statute of limitations begins to run once a plaintiff is aware of his injury and its cause. Awareness of his legal rights is not necessary. Defendant argues that the plaintiffs here knew of their injury -- the property loss -- and its cause when the injury occurred. Their cause of action therefore accrued then. Defendant contends that even if Richards should apply, there was no concealment of plaintiffs' "cause of action"; the concealment, if any, went to an affirmative defense and not to the takings claim.
Defendant is correct in stating that Richards involved individual defendants and not the federal government. But the doctrine of fraudulent concealment has been applied to the United States by other courts, and nothing in Kubrick establishes that those holdings are wrong. See Diminnie v. United States, 728 F.2d 301, slip op. at 6 (6th Cir. 1984); Japanese War Notes Claimants Association of the Philippines, Inc. v. United States, 178 Ct. Cl. 630, 373 F.2d 356, 358-59 (Ct.Cl.), cert. denied, 389 U.S. 971, 19 L. Ed. 2d 461, 88 S. Ct. 466 (1967). Defendant is also correct in stating that the concealed facts in Richards went to an element of plaintiff's cause of action, while here, the concealed facts go to a defense. Yet it would not be appropriate to hinge the decision here on such a technical distinction.
It is undisputed that reports from the FCC, the FBI, and Naval Intelligence contradicting the claim of military necessity were concealed by defendant throughout the war, as most graphically illustrated by the Ennis and Burling memoranda urging the disclosure of these findings in the Hirabayashi and Korematsu briefs. Obviously, Ennis and Burling strongly believed that these documents could have affected the Supreme Court's decisions. Had this information been suppressed until the present, plaintiffs' tolling argument might succeed under Richards.
But, even if Richards is applied in this case, plaintiffs' claim is time barred. The FCC, FBI, and Naval Intelligence reports and others have been available, and publicized, since soon after the war's conclusion. The pre-war report from Curtis Munson to President Roosevelt, which advised, "There is no Japanese 'problem' on the Coast" was first disclosed in 1946 during hearings of the Joint Congressional Committee on the Investigation of the Pearl Harbor Attack. Pearl Harbor Attack: Hearings Before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess. 2680 (1946). Ringle's detailed report, which concluded that only limited individual detention of Japanese Americans was needed, was published at least as early as 1949 in Martin Grodzins' book, Americans Betrayed: Politics and the Japanese Evacuation 188-89.
Grodzin's book also reported the letter from FCC Chairman Fly to Attorney General Biddle describing Fly's surveillance reports to General DeWitt and revealing the inaccuracies of DeWitt's claims of illicit transmissions. Id. at 291-94. That book notes that FBI Director Hoover similarly denied the existence of unauthorized transmissions in a letter to Biddle. Id. at 291. Finally, Grodzin points out that all of this information was gathered by the Justice Department in preparation for the Supreme Court litigation. Id. at 291 n.50.
Grodzin's book is not alone; the events surrounding the evacuation and internment have been subjected to intense scrutiny over the years and have produced a lengthy literature.
These publications lay out almost all of the facts alleged by plaintiffs, along with many others. Plaintiffs cannot claim that the facts underlying their suit were discovered by the Commission on Wartime Relocation and Internment of Civilians. Its synthesis of the material has made it easier for plaintiffs to challenge the military necessity rationale of Korematsu. But the availability of the material to a diligent plaintiff did not require the Commission's intervention. A Supreme Court finding is a formidable obstacle. But diligent advocates have successfully challenged such decisions in the past. Compare Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), with Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), with Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L. Ed. 865 (1842); Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 53 L. Ed. 2d 568, 97 S. Ct. 2549 (1977), with United States v. Arnold, Schwinn & Co., 388 U.S. 365, 18 L. Ed. 2d 1249, 87 S. Ct. 1856 (1967). Here, such a suit could have been filed long ago.
Still, plaintiffs point to several documents that were not released until the Commission's report was published in 1982 and that they claim are "essential" to the success of their challenge.
Two of these documents date from before the war: a memorandum from President Roosevelt to the Chief of Naval Operations, dated August 10, 1936 (Complaint, Exhibit B), and a memorandum from Secretary of the Navy Frank Knox to President Roosevelt, dated October 9, 1940 (Complaint, Exhibit A). These documents discuss the possibility of building "concentration camps" for Japanese Americans "in the event of trouble." Plaintiffs cite these as evidence that the conspiracy to deprive them of their constitutional rights began before the war. However, plaintiffs' suit is based not on the fact of internment but rather on internment without military necessity. These documents shed no new light on that, unless they corroborate military concerns contemporary to the internment decision.
Next, plaintiffs point to a letter from Colonel Karl Bendetsen, liaison between the War Department and the Western Defense Command, to Lieutenant John Hall, Acting Executive Officer in the Assistant Secretary of War's office. (Complaint, Exhibit M). The letter, dated September 13, 1942, submits to Hall a draft of legislation designed to suspend the writ of habeas corpus as to persons of Japanese ancestry who had been excluded from any military area. Plaintiffs view this as further evidence of the conspiracy to deprive them of their rights and property. But while his goal may not have been admirable, Colonel Bendetsen's suggestion of the submission of this or any other bill for Congress' consideration is not actionable or evidence of anything relevant to plaintiffs' ability to make a timely claim.
The most significant of the newly released documents are the memoranda by Edward Ennis and John Burling discussing the inaccuracies in DeWitt's Final Report and urging that notice be taken of those inaccuracies in the Hirabayashi and Korematsu briefs. These memoranda show that some Justice Department officials believed that DeWitt's military necessity rationale was questionable but that their superiors decided nevertheless not to disclose to the Supreme Court probative evidence contradicting that rationale. Plaintiffs argue that these documents are essential to their claims because the
documents previously available did not disclose the government's conspiracy or other evidence obviously different from that which had been presented to the courts in the 1940's. To the contrary, this published information merely tended to support the same arguments advanced against the government and rejected in the wartime cases -- that the plaintiff class was loyal to the United States and there was no military necessity for the wartime actions. It was not until the [Commission's] work and related archival findings uncovered and published evidence of intentional government concealment and misrepresentation, that plaintiffs had evidence obviously different from that earlier ruled on by the Supreme Court. . . . The [Commission] report and related archival findings repudiate the government's wartime representations in its legal briefs and the foundations of the Supreme Court's wartime rulings. These documents finally provided plaintiffs the grounds for a good faith pleading that could successfully rebut the government's claims of "military necessity," and thus meet the requirements of Rule 11, Fed. R. Civ. P., and stare decisis.
Plaintiffs' Supplemental Memorandum on the Statute of Limitations at 7-9 (Jan. 20, 1984) (footnote omitted).
However, it is the Ringle, Fly, and Hoover documents, not the Ennis and Burling memoranda, which contain the direct evidence requisite to challenging the finding of military necessity.
The Ennis and Burling memoranda are not probative of military necessity, vel non. They fully justify the condemnation of the wartime Department of Justice voiced by the Commission and the plaintiffs. The failure of the Attorney General or the Solicitor General of the time to be more forthright with the Supreme Court was one basis for the decision of the District Court in the Northern District of California to vacate the conviction of Fred Korematsu. See Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984).
But for purposes of the takings claim at issue here, the memoranda are directly probative only of the fact that the Department of Justice denied the Supreme Court timely access to the Ringle, Fly, and Hoover documents.
That concealment, whether intentional or not, is not a basis for tolling a statute of limitations beyond the time the information concealed by that conduct was published. The publication in the late 1940's of the previously concealed Ringle, Fly, and Hoover documents, not the publication in the 1980's of the Ennis and Burling memoranda, provided the basis on which plaintiffs could have filed a complaint challenging the military necessity finding and marked the beginning of the running of the statute of limitations.
This conclusion does not overlook plaintiffs' contention that the 1982 publication of the Ennis/Burling memoranda was the first disclosure of direct evidence of a vital overt act in an alleged conspiracy: "intentional government concealment" of the Ringle, Fly, and Hoover documents from the Supreme Court by the Department of Justice at the behest of the military. See Plaintiffs' Supplemental Memorandum at 8. But there has long been sufficient circumstantial evidence of the concealment: the Department of Justice had these documents when it filed its brief in Korematsu, yet it is apparent from the face of the United States' brief that it did not mention those documents. See supra pp. slip op. 40-41. Moreover, proof of intentional concealment or of conspiracy cannot overcome the ultimate fact for limitations tolling purposes that the underlying documents concealed from the Supreme Court in 1944 became public and were available to diligent plaintiffs from the late 1940's onward. The statute of limitations has run long ago.
In summary, the standard by which fraudulent concealment must be judged is not one of full disclosure but rather one of sufficient disclosure to allow the plaintiffs, through due diligence, to state a claim. In other words,
Once the statute of limitations has been tolled, it is not necessary that plaintiff obtain a thorough understanding of all the facts to halt the suspension. Defendant is not required to wait until plaintiff has started substantiating its claims by the discovery of evidence. Once plaintiff is on inquiry that it has a potential claim, the statute can start to run.
Japanese War Notes Claimants Association of the Philippines, Inc. v. United States, 373 F.2d 356, 359, 178 Ct. Cl. 630 (Ct. Cl.), cert. denied, 389 U.S. 971, 88 S. Ct. 466, 19 L. Ed. 2d 461 (1967). By this standard, plaintiffs could have brought their claim even without the benefit of these new documents.
In an attempt to reduce their burden, plaintiffs advance several arguments concerning the requirement of due diligence, each of which can be quickly met. They argue that "aggravating factors," such as "governmental secrecy, misrepresentations, exclusive control of evidence pertaining to military necessity, unidentified informants, and intentional efforts to conceal evidence," should be weighed in judging due diligence. Plaintiffs' Supplemental Memorandum on the Statute of Limitations at 15 (Jan. 20, 1984). But the due diligence standard was developed in the context of fraudulent concealment; to consider these "aggravating factors" would be the equivalent of double counting. Secondly, plaintiffs urge that the degree of difficulty in gathering the necessary documents -- which they say were spread out over more than eighteen archival libraries in seven different states -- should be considered in tolling the statute. The crucial time period in this regard, however, is not the time needed to assemble every relevant document, but the time needed to assemble information sufficient to file a complaint. As has been set out more fully above, all of the necessary facts have long been in the public domain, available to a diligent plaintiff and counsel.
Finally, plaintiffs argue that the due diligence requirement is lessened here because a fiduciary relationship existed between defendant and plaintiffs, putting an additional burden of disclosure on defendant. No such relationship can be established, however, as will be discussed below.
In addition to their constitutional claims, plaintiffs seek recovery under the Tucker Act on several contract theories (Count XXI).
They assert that express contracts, both oral and written, arose from promises by General DeWitt and other United States officials concerning the nature, purpose, and duration of the detention and the services and protections to be accorded plaintiffs. For example, Civilian Exclusion Order No. 5 (Complaint, Exhibit I) stated that the government would
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.