Consolo v. United States

31 Fed. Cl. 447, 1994 U.S. Claims LEXIS 113, 1994 WL 278506
CourtUnited States Court of Federal Claims
DecidedJune 23, 1994
DocketNo. 93-296 C
StatusPublished
Cited by4 cases

This text of 31 Fed. Cl. 447 (Consolo v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consolo v. United States, 31 Fed. Cl. 447, 1994 U.S. Claims LEXIS 113, 1994 WL 278506 (uscfc 1994).

Opinion

OPINION AND ORDER

TURNER, Judge.

This opinion addresses plaintiff’s motion for summary judgment filed on October 28, 1993, and defendant’s cross-motion for summary judgment filed on December 7, 1993. Oral argument on the dispositive motions was heard on March 9, 1994. We conclude that plaintiffs motion should be granted and that defendant’s cross-motion should be denied.

I

Linda Yae Consolo (plaintiff), by complaint filed on May 11, 1993, seeks review of the denial of her claim for $20,000 as compensation under the Civil Liberties Act of 1988, 50 U.S.C. app. §§ 1989b to 1989b-8 (1988). Congress adopted the Act as an acknowledgment of and an official apology for the fundamental injustice of the government’s policy of evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II. 50 U.S.C. app. § 1989(1) and (2). In addition, the Act established the Civil Liberties Public Education Fund from which eligible individuals are to receive financial compensation for the deprivation of their liberty and property as a result of the government’s wartime actions. 50 U.S.C. app. § 19891J-3.1

Under the Act, the Attorney General is responsible for identifying, locating, and paying the sum of $20,000 as compensation to each “eligible individual.” 50 U.S.C. app. § 1989b-4(a) and (b). Pursuant to 28 C.F.R. § 74.1-.17, the Attorney General, through the Office of Redress Administration, Civil Rights Division, Department of Justice (ORA), notifies individuals of their potential [449]*449eligibility and verifies their claims upon receipt of certain background information. If the ORA determines that a person is ineligible, that person has the right to seek reconsideration of such a determination from the Assistant Attorney General for Civil Rights. A claimant may appeal any adverse decision by the Assistant Attorney General to the Court of Federal Claims. Suzuki v. United States, 29 Fed.Cl. 688, 690 (1993); 50 U.S.C. app. § 1989b-4(h).

II

There are no material facts in dispute. Plaintiff is a United States citizen of Japanese ancestry bom on April 11, 1943, in Fielding, Utah. Plaintiffs parents relocated to Utah from their home in Los Angeles, California in March 1942, following Public Proclamation No. 1, in which the Federal West Coast Military Command designated California as an area from which all persons of Japanese descent would be excluded. PL Separate Statement of Facts, at 1-2. Plaintiff and her parents were prohibited by law from returning to their home in Los Angeles dining this period. After the military restrictions were lifted, plaintiff and her parents returned to Los Angeles where plaintiff has since resided. Complaint at 3.

In 1992, the ORA denied plaintiff’s claim for compensation, concluding that she was not eligible because her “losses were not the result of government action as defined in the Act and the implementing regulations.” Administrative Record at 69-70. The Assistant Attorney General for Civil Rights subsequently affirmed the ORA’s decision in a final agency decision, stating:

Under the regulations implementing the Act, children who were ‘bom in assembly centers, relocation camps and internment camps’ are eligible for redress compensation. 28 C.F.R. 74.3(b)(7); 54 Fed.Reg. 34157, 34160 (August 18, 1989). However, the regulations ‘do not include as eligible children born after their parents had voluntarily relocated from prohibited military zones, or from assembly centers, relocation camps, or internment camps.’ 54 Fed.Reg. at 34160. Therefore, because Ms. Consolo was bom after her parents relocated from a prohibited military zone, she is not an ‘individual ... confined, held in custody [or] relocated’ within the meaning of the Act. 50 U.S.CApp. 1989b-7(2)(b).

Administrative Record at 118-119.

Plaintiff argues that she was both relocated and deprived of liberty during the evacuation, relocation, and internment period, and, therefore, defendant’s denial of her compensation claim is arbitrary, capricious, an abuse of discretion, and not in accordance .with law. Complaint at 2-5 and plaintiffs brief in support of motion for summary judgment (PL Br.) at 10-15. Defendant maintains that plaintiff is not an eligible individual as defined by the Act because she was neither relocated nor suffered a deprivation of liberty for which Congress intended to provide compensation. Defendant’s brief in opposition to plaintiffs motion for summary judgment and cross-motion for summary judgment (Def.Br.) at 10-12. We have jurisdiction pursuant to 50 U.S.C. app. § 1989b-4(h).

Ill

A

This court has authority to review the Assistant Attorney General’s denial of compensation “upon the administrative record” and shall set the denial aside as unlawftd if the denial “is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 50 U.S.C. app. § 1989b-4(h)(1); see Suzuki at 691.

Although we recognize that an agency’s decision is entitled to substantial deference, Doty v. United States, 24 Cl.Ct. 615, 626 (1991) (citing Rogers v. United States, 14 Cl.Ct. 39, 46 (1987), aff'd, 861 F.2d 729 (Fed.Cir.1988), cert. denied 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 403 (1989)), we “should not defer to an agency position which is contrary to an intent of Congress expressed in unambiguous terms.” Estate of Cowart v. Nicklos Drilling Co., — U.S. —,—, 112 S.Ct. 2589, 2594, 120 L.Ed.2d 379 (1992). In reviewing the Department of Justice’s (DOJ) construction of the Act, we must first look to whether Congress has spoken directly to the precise question at issue, which is whether a plaintiff who was [450]*450born after her parents’ “voluntary” relocation is an eligible individual. If we determine that the language of the Act is unambiguous and that 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 unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). See Skinner v. Brown, 27 F.3d 1571, 1572-73, 1575-76 (Fed.Cir.1994).

B

This court recently addressed the issue of whether individuals born after their parents’ “voluntary” relocation from prohibited military areas are eligible for compensation under the Act. In Ishida v. United States, 31 Fed.Cl. 280 (1994), plaintiff challenged DOJ’s denial of his compensation claim as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.2 Id. at 284. Another judge of the court, deferring to DOJ’s interpretation of the Act, held that the determination that the clause “otherwise deprived of liberty” does not extend to individuals born after their parents relocated is a reasonable interpretation of Congress’s intent and thus is in accordance with law.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Odow v. United States
51 Fed. Cl. 425 (Federal Claims, 2001)
Murakami v. United States
46 Fed. Cl. 653 (Federal Claims, 2000)
Motoyoshi v. United States
33 Fed. Cl. 45 (Federal Claims, 1995)
Tanihara v. United States
32 Fed. Cl. 805 (Federal Claims, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
31 Fed. Cl. 447, 1994 U.S. Claims LEXIS 113, 1994 WL 278506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolo-v-united-states-uscfc-1994.