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May 17, 1984

WILLIAM HOHRI, et al., Plaintiffs,

The opinion of the court was delivered by: OBERDORFER

 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. *fn1" 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." *fn2" 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. *fn3"

 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. *fn4"

 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, 925 (D.C. Cir. 1984) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (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, *fn5" 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." *fn6" 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. *fn7" 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) (Complaint, Exhibit I).

 There were sixteen assembly centers, all but three in California. Generally, assembly centers were organized around "blocks," a group of living units housing 600 to 800 people. Each block had showers, lavatories, toilets, and in most cases its own mess hall. The camps themselves were surrounded by fences and search lights and secured by military and internal police.

 The transfer of evacuees from assembly centers to permanent relocation camps began in May 1942; by its completion, the WRA would have some 120,000 individuals its custody. There were ten camps, built on federal land in Utah, Arizona, Colorado, Wyoming, Arkansas, Idaho, and California. Several of the sites were located in arid desert land, and most suffered from severe weather conditions at some time during the year. The camps were surrounded by barbed wire, watchtowers, and armed guards. Living accommodations were arranged in the block style. Typically, one block contained twelve to fourteen barracks, a mess hall, baths, showers, toilets, a laundry and a recreation hall. Each barrack had 2000 to 2400 square feet of floor space and was divided into four to six rooms. One room would house a family, sometimes two. Employment outside the centers was not permitted; work was made available at the centers for $12 to $19 a month. Food, shelter, medical care, and education were provided to the evacuees free of charge, but even when their value was added to the low salaries, the economic hardship imposed by the internment was obvious.

 Initially, no evacuee was allowed to leave the center except in emergencies, and then only in the company of a non-Japanese escort. Soon exceptions were made for evacuees to continue their college educations in the interior and to provide farm labor. By October 1942, a formal leave system had been instituted that allowed short-term leave, work group leave for seasonal employment, and indefinite leave -- the equivalent of relocation -- for educational, employment, or other reasons. The next year, government officials adopted a more sweeping release plan in order to enlist Japanese Americans as soldiers. In February 1943, a "loyalty" questionnaire was administered to all evacuees over seventeen years of age. The information provided by these questionnaires was used to determine eligibility for enlistment and for leave and relocation outside the camps.

 The implementation of the loyalty review and release program prompted a heated debate between the War Department and the Western Defense Command over continued exclusion of Japanese Americans from the West Coast. General DeWitt took the position that loyal Japanese Americans could not be separated from disloyal, so that all should be excluded; he argued in addition that public opinion would not support a reversal in policy. Officials in the War Department urged that the loyal could be distinguished from the disloyal. After Pearl Harbor, there had been insufficient time to do so. But now that loyalty could be established on an individual basis through the loyalty questionnaire, they opposed continuing the exclusion.

 The first significant breach in the policy of exclusion occurred in April 1943, when Japanese Americans in the armed forces were allowed to return to the West Coast on furlough. By Spring of 1944, efforts to end exclusion had gained momentum. In February, the WRA had been placed within the Interior Department, which opposed the evacuation. On May 26, 1944, Secretary of War Stimson proposed at a cabinet meeting that exclusion be ended. General Bonesteel, the new Commanding General of the Western Defense Command, *fn8" wrote to a War Department official on July 3, 1944, to state that there was no longer a military necessity for exclusion. The Navy concurred in that judgment in September. In fact, Bonesteel began on a small scale to allow Japanese Americans to return to the West Coast during the Spring of 1944. *fn9" President Roosevelt declined to do anything "drastic or sudden," however. In the opinion of the Commission on Wartime Relocation, Roosevelt did not wish to impair his reelection chances in the West. Personal Justice Denied at 229.

 The decision to lift the West Coast exclusion was made in a cabinet meeting on November 10, 1944, immediately following the election. The War Department publicly rescinded the mass exclusion order on December 17, 1944, although individual exclusions were continued in effect. The repatriation was slow; by August, 1945, when Japan surrendered, over half of the evacuated population remained in the United States' custody. Even though all individual exclusion orders and military restrictions against the Japanese were revoked on September 4, the last relocation camp was not closed until March 1946.


 The claims of military necessity that underlay the promulgation of Executive Order 9066 and its subsequent implementation are stated in two official reports filed by General DeWitt during the war: the Final Recommendation of the Commanding General, Western Defense Command and Fourth Army, Submitted to The Secretary of War and Final and Final Report; Japanese Evacuation from the West Coast 1942. The Final Recommendation, submitted on February 14, 1942, stated that Japanese naval attacks on shipping and coastal cities were "probable," as were air raids and sabotage of vital installations within the Western Defense Command. It claimed that these enemy activities would be assisted by agents in the United States. The 112,000 individuals of Japanese ancestry living in the area were "potential enemies" because of their ties to Japan and were "at large today." DeWitt wrote

In the war in which we are now engaged racial affinities are not severed by migration. 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. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects, ready to fight and, if necessary, to die for Japan in a war against the nation of their parents. That Japan is allied with Germany and Italy in this struggle is no ground for assuming that any Japanese, barred from assimilation by convention as he is, though born and raised in the United States, will not turn against this nation when the final test of loyalty comes.

 DeWitt claimed, without elaboration, that "indications" existed that these individuals were organized for concerted activity; "the very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken."

 DeWitt attempted to substantiate these claims in his Final Report.10 Citing the United States' deteriorating military position in the Pacific theater, three isolated attacks on West Coast targets, and interference with Pacific shipping, DeWitt concluded that the West Coast was exposed to attack. DeWitt predicted that such an attack, if it came, would receive significant support from segments of the Japanese American population. To support this claim, he pointed to FBI raids on the premises of Japanese aliens immediately following Pearl Harbor which discovered ammunition, rifles, shotguns, and "maps of all kinds." Final Report at 8. He claimed there were hundreds of reports each night of signal lights visible from the coast and of unidentified radio transmissions. He noted that Japanese Americans, "by design or accident," had located many of their communities near vital installations. Id. at 9. And he repeated his racial arguments. The Japanese Americans, according to DeWitt, were

a large, unassimilated, tightly-knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion. . . .

 Id. at vii. *fn11" DeWitt claimed that hundreds of Japanese American organizations on the West Coast were actively advancing Japanese war aims and that thousands of American-born Japanese had been educated in Japan, where they were indoctrinated and became "rabidly pro-Japanese." Id. DeWitt contended that it was impossible to isolate these disloyal Japanese Americans from the loyal. Therefore, it was necessary to remove them all from the West Coast.

 Munson's report was impressionistic; a detailed, complete analysis of the Japanese situation on the West Coasts was submitted to the Chief of Naval Operations on January 26, 1942, by Lieutenant Commander Kenneth D. Ringle, an expert on Japanese intelligence in the Office of Naval Intelligence. See K. Ringle, Report on Japanese Question (Complaint, Exhibit D). Ringle concluded that at least 75 percent of the American-born United States citizens of Japanese ancestry were loyal to the United States and that a large majority of the alien residents were at least "passively loyal." He identified those groups most suspected of disloyalty and estimated their number as a small fraction of the Japanese American population. He noted that the most dangerous of these individuals were already in custody and that most of the others were known to the FBI and other government organizations. He recommended immediate detention for the remainder of the dangerous element, both citizens and aliens. He urged, however, that the so-called "Japanese Problem" be handled on an individual, not racial, basis. "In short," he concluded, "the entire 'Japanese Problem' has been magnified out of its true proportion, largely because of the physical characteristics of the people; . . . it is no more serious than the problems of the German, Italian, and Communistic portions of the United States population. . . ." Id. at 3.

 DeWitt's Final Report cited numerous reports of unauthorized radio and light signals on the West Coast as evidence of the need for evacuation. Those claims were directly contradicted by reports DeWitt received from the Federal Communications Commission (FCC), which monitored transmissions on the West Coast and provided its findings on a continuous basis to DeWitt. According to an April 1944 letter from FCC Chairman James L. Fly to the Attorney General, the FCC's Radio Intelligence Division conducted a 24-hour surveillance of the entire radio spectrum from December 1941 to July 1, 1942. At the request of DeWitt, the Commission supplemented its sophisticated surveillance apparatus with mobile direction-finding intercept units to pick up ship-to-shore transmissions. The Commission was "deluged" with reports of suspicious transmissions; upon investigation, no transmission was ever found to be "other than legitimate." DeWitt's Final Report claimed that reports of radio and light signaling were virtually eliminated after the evacuation. The FCC found that the number of reports was not affected by the evacuation. Finally, DeWitt had asserted in a memorandum to the Assistant to the Attorney General that he did not have the capacity to track down suspected transmitters to an area smaller than a city block. The FCC in fact had the capacity to pinpoint a transmitter to a particular room within a building. Letter from FCC Chairman James L. Fly to Attorney General Francis Biddle (Apr. 4, 1944) (Complaint, Exhibit E).


 Numerous aspects of the exclusion and internment program were challenged in civil and criminal proceedings during the war. *fn12" Several of those cases reached the Supreme Court, where the constitutionality of the government's treatment of Japanese Americans was tested. In Hirabayashi v. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375 (1943), the Court considered whether the imposition of curfew regulations on Japanese Americans was a legitimate exercise of the constitutional power to wage war. *fn13" In Korematsu v. United States, 323 U.S. 214, 89 L. Ed. 194, 65 S. Ct. 193 (1944), the same issue was raised with respect to the decision to exclude Japanese Americans from the West Coast. *fn14"

 The information gathered by the FBI, the FCC, and Naval Intelligence which minimized General DeWitt's theory of a mass threat gradually came to the Justice Department's attention as it prepared to defend these cases before the Supreme Court. Once in possession of these facts, Department officials disagreed among themselves about whether disclosure was required. That issue was initially raised by Edward Ennis, Director of the Justice Department's Alien Enemy Control Unit, during preparation of the Hirabayashi brief. Ennis, who had learned of Lieutenant Ringle's intelligence work, *fn15" summarized Ringle's conclusions about the "Japanese Problem" in a memorandum to the Solicitor General. See Memorandum from Ennis to Solicitor General Charles Fahy (Apr. 30, 1943) (Complaint, Exhibit J). Ennis then noted that the government planned to argue in Hirabayashi that mass evacuation was required because individual, selective evacuation would have been "impractical and insufficient." But, he pointed out, this argument was significantly undercut by the fact that "the only Intelligence agency responsible for advising Gen. DeWitt gave him advice directly to the contrary." Memorandum at 3. Ennis suggested that the Department had a duty to disclose the report to the Court. "Any other course of conduct might approximate the suppression of evidence." Id. at 4.

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