       Eligibility of Involuntary Wartime Relocatees to Japan for
              Redress Under the Civil Liberties Act of 1988


T h e p ro p o s e d D e p a rtm e n t o f J u s tic e change in its in te rp re ta tio n o f the C iv il L ib e rtie s A c t o f 1988 to
     e x te n d re d re s s u n d e r th e A c t to m inors w h o a c c o m p a n ie d th e ir p aren ts to Jap a n d u rin g W o rld W a r
     II a n d to a d u lts w h o a re a b le to show th a t th e ir re lo c a tio n to J a p a n d u rin g th at p e rio d w as in v o lu n ­
     tary is a re a so n a b le a n d p e rm is sib le in te rp re ta tio n o f th e s ta tu te


A lth o u g h an a g e n c y in te rp re ta tio n th a t has b e e n m o d ifie d o r re v e rs e d is lik e ly to re c eiv e le ss d e fe re n c e
     b y a re v ie w in g c o u rt th a n a c o n siste n t an d c o n te m p o ra n e o u s in te rp re ta tio n , the fact o f m o d ific a tio n
     d o e s n o t p re c lu d e th e c o u rt fro m g ran tin g d e fe re n c e to th e n e w in te rp reta tio n


                                                                                                                             M ay 10, 1994


                      M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l
                                                       C i v il R i g h t s D i v i s i o n


   This memorandum is in response to your request for this Office’s review of the
proposed change in eligibility determinations under the Civil Liberties Act of
1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 U.S.C. app. § 1989
(1988)) (“the Act”). The proposed change would extend redress under the Act to
minors who accompanied their parents to Japan during World War II and to adults
who are able to show that their relocation to Japan during that period was involun­
tary. We conclude that the proposed change is a reasonable and permissible inter­
pretation of the statute.
   We also have analyzed the implications of this,change as to the deference the
Department can expect from a reviewing court in the event of a challenge. An
agency interpretation that has been modified or reversed is likely to receive less
deference than a consistent and contemporaneous interpretation, but the fact of
modification does not preclude a court from granting deference to the new inter­
pretation.
    1.     The Civil Liberties Act of 1988 enacts into law the recommendations of the
Commission on Wartime Relocation and Internment of Civilians established by
Congress in 1980. H.R. Conf. Rep. No. 100-785, at 1 (1988). The Commission
submitted a unanimous report to Congress in 1983, entitled Personal Justice D e­
nied , “which extensively reviewed the history and circumstances of the decision to
exclude, remove,” and ultimately to intern “Japanese Americans and Japanese resi­
dent aliens from the West Coast, as well as the treatment of the Aleuts during
World War II.” Redress Provisions for Persons of Japanese Ancestry, 54 Fed.
Reg. 34,157 (1989). The final part of the Commission’s report, Personal Justice
Denied 2: Recommendations, concluded that these events were influenced by ra­


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             E lig ib ility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the
                                            C ivil Liberies A ct o f 1988

cial prejudice, war hysteria, and a failure of political leadership and recommended
that Congress and the President take remedial action. Id.
   The Civil Liberties Act of 1988 was signed into law by President Reagan on
August 10, 1988. The purposes of the Act are to acknowledge and apologize for
the fundamental injustice of the evacuation, relocation, and internment of Japanese
Americans and permanent resident aliens of Japanese ancestry; to make restitution
to the individuals who were interned; and to fund a public education program to
prevent the occurrence of any similar event in the future. 50 U.S.C. app. §§ 1989-
 1989a. Any “eligible individual” living on the date of enactment is entitled to a
restitution payment of $20,000. 50 U.S.C. app. § 1989b-4(a)(l).
   The Attorney General is responsible for identifying, locating, and authorizing
payment to all eligible individuals. 50 U.S.C. app. § 1989b-4. The Attorney Gen­
eral delegated the responsibilities and duties assigned by the Act to the Assistant
Attorney General for Civil Rights, who created the Office of Redress Administra­
tion in the Civil Rights Division (the “Division”) to execute the duties of the De­
partment under the Act. The regulations governing eligibility and restitution were
drafted in the Office of Redress Administration and published under the authority
of the Department in 1989. 54 Fed. Reg. 34,157 (1989) (final rule) (codified at ,28
C.F.R. § 74).
    Section 108(2) of the Act defines the individuals eligible for redress payments
as any United States citizen or permanent resident alien of Japanese ancestry who
was evacuated, relocated, or interned during World War II.1 This provision spe­
cifically excludes from eligibility “any individual who, during the period beginning
on December 7, 1941, and ending on September 2, 1945, relocated to another
country while the United States was at war with that country.” 50 U.S.C. app. §
 1989b-7(2) (“the relocation exclusion”). The relocation exclusion in the regula­
tions governing eligibility determinations under the Act uses precisely the same
language. 28 C.F.R. § 74.4.
    The regulations do not specifically address the eligibility of minors who accom­
panied their parents to Japan during this period or of adults who claim that their
relocation was involuntary. However, the notice accompanying the publication of
the final regulations noted that the Department had received sixty-one comments
supporting eligibility for the minors. After considering these comments, the De­
partment determined that “the exclusionary language of the Act would preclude
from eligibility the minors, as well as [the] adults, who were relocated to Japan
during that particular time period.” 54 Fed. Reg. at 34,160.
    In a 1989 memorandum outlining the eligibility determinations, the Civil Rights
Division considered the claims of the minor evacuees. The Division noted that

   1    As enacted in 1988. the A ct lim ited eligibility to those o f Japanese descent T he 1992 am endm ents
added language ex ten d in g eligibility to any spouse o r parent o f an individual o f Japanese descent w ho ac­
com panied her sp o u se o r child through the evacuation, internm ent, or relocation         C ivil L iberties Act
A m endm ents o f 1992, Pub L N o 102-371, 106 Stat. 1 i67 The question o f the eligibility of the m inor and
involuntary adult relocatees was not considered o r discussed in the debates on the 1992 am endm ents.

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                          O pinions o f the O ffice o f L egal C ounsel


minor children were not in a position to make their own choice regarding emigra­
tion. However, in light of the language excluding any individual who relocated to
Japan during the period and the lack of any expression of legislative intent to dis­
tinguish the minor relocatees from adults, the Division took the position that these
minors were ineligible. Memorandum for Douglas W. Kmiec, Assistant Attorney
General, Office of Legal Counsel, from James P. Turner, Acting Assistant Attorney
General, Civil Rights Division at 11-12 (Feb. 27, 1989). OLC concurred in this
determination without exposition. Memorandum for James P. Turner, Acting As­
sistant Attorney General, Civil Rights Division, from Douglas W. Kmiec, Assistant
Attorney General, Office of Legal Counsel (Apr. 17, 1989).
    In litigation challenging the Division’s current eligibility standards, counsel for
the plaintiffs have advanced an analysis that was not considered by the Department
in 1989. In that analysis, claimants’ counsel contend that the use of the active
voice in the language of the relocation exclusion provision renders the statute am­
biguous as to the eligibility of relocatees who were involuntarily returned to Japan.
Given this ambiguity, counsel argue, an interpretation which allows involuntary
relocatees to recover under the Act is reasonable. The Division is persuaded by
this analysis and takes the position that while its original interpretation of the stat­
ute deeming involuntary relocatees ineligible was reasonable, the proposed new
interpretation is equally reasonable. The proposed change in eligibility determina­
tions is thus a change in the Department’s interpretation of its own regulation.
Since the language of the regulation is identical to the language of the statute, the
Department would effectively be changing its interpretation of the statute as well.
    2.     In reviewing the Division’s proposed modification to the interpretation of the
regulation, this Office’s task is to determine whether the construction adopted by
the Civil Rights Division is a permissible one. As the Supreme Court stated in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984):

       If the intent of Congress is clear, that is the end of the matter; for
       the court, as well as the agency, must give effect to the unambigu­
       ously expressed intent of Congress. If, however, the court deter­
       mines Congress has not directly addressed the precise question at
       issue, . . . the question for the court is whether the agency’s answer
       is based on a permissible construction of the statute.

Id. at 842-43 (footnotes omitted). The Department cannot revise its interpretation
of the Act’s eligibility exclusion if the original interpretation is mandated by the
plain language of the statute. If, however, the statutory language is ambiguous and
the proposed modification is reasonable, the Division’s proposed interpretation is
permissible.


                                              96
          E ligibility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the
                                       C ivil Liberies A ct o f 1988

    3.     As enacted, section 108(2)(B)(ii) of the Act expressly excludes from eligi­
bility “any individual who, during the period beginning on December 7, 1941, and
ending on September 2, 1945, relocated to [another] country while the United
States was at war with that country” (emphasis added). This language does not
specifically address the eligibility of minor relocatees who accompanied their par­
ents, or the voluntariness of these repatriations.
    While the statute uses the active voice in this exclusion clause, the eligibility
clauses of the statute use the passive voice. For example, section 108 begins by
defining an “eligible individual” as a person of Japanese ancestry “who, during the
evacuation, relocation and internment period — . . . was confined, held in custody,
relocated, or otherwise deprived of liberty or property as a result of . . . [various
Executive Orders and Acts].” 50 U.S.C. app. § 1989b-7(2) (emphasis added).
Title II of the Act, which provides reparations to Aleuts evacuated from their home
islands during World War II, similarly defines an eligible Aleut as a person “who,
as a civilian, was relocated by authority of the United States from his or her home
village . . . to an internment camp.” 50 U.S.C. app. § 1989c-1(5) (emphasis
added). The use of the active voice in the exclusion clause suggests the possibility
that Congress intended to exclude only those individuals who voluntarily relocated
to an enemy country during the war.
    We agree that this language creates an ambiguity which provides a reasonable
basis for distinguishing between voluntary relocatees, who are ineligible under the
statute, and involuntary relocatees. The U.S. Courts of Appeals for the District of
Columbia and the Ninth Circuits have deemed the use of the active as opposed to
the passive voice relevant for purposes of statutory interpretation. Dickson v. Of­
fice o f Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated use of
passive voice in phrase defining liability is significant and allows suit against OPM
whenever an adverse determination “is made,” even if by another agency); United
States v. Arrellano, 812 F.2d 1209, 1212 (9th Cir.) (clause of statute defining
criminal intent phrased in active voice applies to conduct of the accused, while
second clause phrased in passive voice applies only to the conduct of others), as
amended, 835 F.2d 235 (9th Cir. 1987).
    The legislative history of the Act does not provide any insight into congres­
sional intent regarding the eligibility of involuntary relocatees. As originally intro­
duced, neither the House or the Senate bill included a relocation exclusion
provision in the section defining eligible individuals. Entering conference, the
House version of the Act contained the exclusion, while the Senate version had no
such provision. The conferees agreed to adopt the House provision, which ex­
cluded “those individuals who, during the period from December 7, 1941, through
September 2, 1945, relocated to a country at war with the United States.” H.R.
Conf. Rep. No. 100-785, at 22. There is no additional discussion of the relocation




                                                  97
                                       O pinions o f llie O ffice o f Legal C ounsel


exclusion or of the circumstances surrounding the relocation of internees to Japan
in the conference report.2
    While the Civil Rights Division’s proposed interpretation is not the only possi­
ble interpretation of the statute, it is neither precluded by the plain language of the
statute nor unreasonable. Since minor relocatees below a certain age lacked the
legal capacity to consent to relocation, their relocation was involuntary per se.3
The statute does not bar the Civil Rights Division from declaring these minors eli­
gible for relief. Similarly, it is reasonable to conclude that the statute does not bar
from relief claimants who can provide evidence that their relocation was in fact
involuntary.
    Arguably, the Civil Rights Division’s proposed narrowing of the breadth of the
relocation exclusion is more reasonable than its earlier interpretation. Generally,
remedial statutes should be interpreted broadly to effectuate their remedial pur­
pose. Any exceptions should be interpreted narrowly. Norman J. Singer, Suther­
land Statutory Construction §60.01 (5th ed. 1992). While courts have generally
held that waivers of sovereign immunity granting rights of action against the
United States must be strictly construed, they “have on occasion narrowly con­
strued exceptions to waivers of sovereign immunity where that was consistent with
Congress’ clear intent.” See United States v. Nordic Village, Inc., 503 U.S. 30, 34
(1992) (citing, e.g., Franchise Tax Bd. o f Calif, v. United States Postal Serv., 467
U.S. 512, 517-19 (1984) (statute authorizing Postal Service to “sue and be sued”
waives immunity from orders to garnish wages issued by state administrative
boards); Block v. Neal, 460 U.S. 289, 298 (1983) (plaintiff’s claim under Federal

     2 T h e sole discu ssio n o f w h eth er individuals w ho w ere returned to Japan should be included in the d e fin i­
tion o f ‘‘e lig ib le in d iv id u als” is contained in tw o w itness statem ents subm itted to the H ouse and S enate
su b co m m itte es co n sid erin g the legislation In testim ony o p p o sin g the enactm ent o f the bill, the A ssistant
A ttorney G en eral for the C iv il D ivision, R ichard K W illard, no ted lhat as then w ritten (w ithout the re lo c a ­
tion exclu sio n ), the bread th o f the definition w o u ld cover any individual w ho had been su b ject to exclusion,
relocatio n , o r in tern m en t in clu d in g persons liv in g outside the U nited States In the D epartm ent s view , this
o v erlo o k ed the fact that at least several hundred o f the d etainees w ere "fanatical pro-Japanese, . . and [had]
vo luntarily sought rep atriatio n to Japan after the end o f the w a r.” T he D epartm ent believed that allow ing
these dislo y al individuals to receive the benefit o f the legislation would be unfair to the U nited Slates and to
loyal perso n s o f Jap an ese d escen t To A ccept th e Findings a n d to Im plem ent the R ecom m endations oj the
C om m issio n on W artim e R elo ca tio n and In tern m en t o f C ivilians. H earing on S 1009 B efore the Suhcom m .
on F e d e ra l Services, P ost O ffice, a n d Civil S e rv ic e o f the S e n a te Com m, on G overnm ental A ffa irs, 100th
C o n g , 1st Sess 281, 2 9 6 (1 9 8 7 ) (“ H earings”).
     R e sp o n d in g to the D e p artm e n t's objections, an o th er w itness argued that many o f these repatriates acted
as they did for reasons un related to disloyalty to the U nited States, nam ely, their sheer frustration at being
in c a rc erate d in prison cam p s like com m on c rim in a ls and su m m arily deprived o f their personal and c o n stitu ­
tional rig h ts H earings at 145, 196-97 (statem en t o f M ike M asaoka, representing the G o For B roke Nisei
V eteran s A ssn ) N eith er o f th ese statem ents reveals, o r ev en suggests, an intention to exclude persons who
in v o lu n ta rily relocated lo an enem y country.
     3 Y o ung ch ild ren are not cap ab le of ex ercisin g the ju d g m e n t required to m anifest legal consent F urther­
m ore, a m in o r g enerally has no right to leave th e custody and control of his parents until he reaches m ajority
or is gran ted em an cip atio n C f Pierce v S o c ie t\’ o f Sisters, 268 U S 510, 518 (1925) (p a re n ts 'c o n s titu tio n ­
ally p ro te c te d liberty in clu d es the right to d ire c t the upbringing o f their children), G im lett v G im lett, 629
P 2d 4 5 0 , 4 5 2 (W ash 1981) (upon em ancipation o r m ajority a person is released from parental authority and
beco m es sui ju ris); In re L u s c ie r 's Welfare, 5 2 4 P 2d 906, 9 0 8 (W ash. 1974) (the interest o f a parent in the
custo d y and control o f his m in o r child is reco g n ized as a sacred right).

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              E ligib ility o f Involuntary W artime R elocatees to Japan fo r R edress U nder the
                                            C ivil Liberies Act o f 1988

Tort Claims Act for negligent inspection not barred by exception disallowing
claims for negligent misrepresentation); United States v. Yellow Cab Co., 340 U.S.
543, 554-55 (1951) (FTCA waives immunity where U.S. impleaded as third-party
defendant)). The compensatory character of the Act’s grant of reparations to spe­
cific individuals of Japanese descent interned by the government is of a different
nature than a general waiver of immunity in actions that will be brought by un­
known plaintiffs. It is appropriate to narrowly construe an exception to this Act.
    4.      There are potentially two groups of plaintiffs who would have standing to
challenge the proposed modified interpretation in court. Because section 104 of
the Act provides for payments to be made in order of date of birth, with no more
than $500 million to be paid in any year, the newly eligible claimants could
“bump” other eligible claimants, delaying or jeopardizing their payments. The age
and relatively low number of minor relocatees (as estimated by the Department)
make it unlikely that the minor relocatees would significantly affect the payment
schedule, but the number and age of involuntary adult relocatees is harder to as­
certain.4 The second group of potential plaintiffs consists of relocatees who are
unable to prove that their relocations were involuntary. This second type of chal­
lenge is more likely to focus upon the burden of proof and the definition of
“voluntary” than upon the reasonableness of the Department’s interpretation of the
regulation.5
    It is true that a contemporaneous, consistent interpretation of a regulation or
statute by the agency charged with its enforcement will be accorded the greatest
deference by the courts, while “[a]n agency interpretation of a relevant provision
which conflicts with the agency’s earlier interpretation is ‘entitled to considerably


    4     Under ihe Act, the o rd er o f paym ent is determ ined by date o f birth, w ith the oldest eligible individuals
receiving paym ent first 50 U S C app § I989b-4(b) Paym ent from the trust established by the A ct is
authorized until A ugust 1998 o r until the funds appropriated are depleted. 50 U.S C. app ^ I989b-3(d) The
 1992 am endm ents placed an additional $400 m illion in the trust because the D epartm ent had already located
more eligible individuals than originally estim ated
     Estim ates o f the num ber o f m inors w ho w ere relocated to Japan vary w idely P laintiffs counsel in a suit
seeking restitution paym ents for fourteen m inor relocatees cite a D epartm ent estim ate ’‘that as m any as 135
m inor children w ere relocated to Japan" w ith their parents during the w ar M em orandum for Jam es P
Turner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision from G en Fujioka, A sian Law C aucus, Jim
M cCabe & O w en C lem ents, M orrison & Foerster at 3-4 (Sept 22, 1993). In contrast, a w itness before the
Senate relying on figures published in a m onograph by the form er director o f the W ar R elocation A uthority
testified that betw een 1942 and 1946 a total o f 4724 repatriates and expatriates sailed for Japan O f this
total, 1659 were alien repatriates, 1949 w ere A m erican citizens, virtually all children under 20 years o f age
accom panying their alien parents, and 11 16 w ere form er A m erican citizens w ho had renounced th eir citiz en ­
ship. H earings at 197 (statem ent o f M ike M asaoka, representing the G o For Broke N isei V eterans A s s n )
(citing D illon S. M eyer, U prooted A m ericans The Japanese A m ericans and the W ar R elocation A uthority
D unng W orld W ar II)
    A pproxim ately 75 adult relocatees have filed claim s with the O ffice o f Redress A dm inistration alleging
that their relocations w ere not voluntary M em orandum for W alter D ellinger, A ssistant A ttorney G eneral,
O ffice o f Legal C ounsel, from Jam es P T urner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision at
4 (M ar 16, 1994)
    3 T he 1992 am endm ents require that individual claim ants receive the benefit o f the doubt w here ’‘there is
an approxim ate balance o f positive and negative evidence regarding the m erits of an issue m aterial to (a]
determ ination o f eligibility ' 50 U S C app & I989b-4(a)(3)

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                          Opinions o f the O ffice o f L egal C ounsel


less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca,
480 U.S. 421, 446 n.30 (1987) (citation omitted); see also General Elec. Co. v.
Gilbert, 429 U.S. 125, 143 (1976). However, in both Cardoza and General Elec­
tric, the Court concluded that the agency’s revised interpretation was in conflict
with the plain language of the statute in question. The underlying rationale for
judicial deference to agency interpretations is as applicable to a modified interpre­
tation of a statute as to the agency’s initial construction. See Chevron, 467 U.S. at
 865 (“it is entirely appropriate” for the agency “to make . . . policy choices”).
Accordingly, the Court of Appeals for the D.C. Circuit has held that the principle
of deferring to an agency’s reasonable construction of an open-ended statutory
provision “appliefs] equally where . . . we review modification of a previous pol­
 icy.” Office o f Communication of the United Church o f Christ v. FCC, 590 F.2d
 1062, 1068-69 (D.C. Cir. 1978). Cf. Phoenix Hydro Corp. v. FERC, 775 F.2d
 1187, 1191 (D.C. Cir. 1985) (an administrative agency is entitled to change its
 prior erroneous interpretation of a statute).

                                       Conclusion

   The Civil Rights Division’s proposed interpretation of the regulation governing
eligibility for redress payments is a reasonable interpretation of the regulation and
of the Act. The language of the exclusion provision is ambiguous as to whether
Congress intended to prevent involuntary relocatees from receiving restitution.
The proposed interpretation does not contradict the language of the statute or the
statute’s legislative history and is consistent with the strong remedial purpose un­
derlying the Act. Although there is a litigation risk associated with this modifica­
tion, it is unlikely that a court would overturn the proposed interpretation. While
this modification does not require formal rulemaking procedures, it would be ad­
visable for the Department to publish a notice of the change and the underlying
reasons in the Federal Register.


                                                       WALTER DELLINGER
                                                      Assistant Attorney General
                                                       Office o f Legal Counsel




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