dissenting.
Introduction
Courts are not the sole source of justice in our land. And that is well, considering the human imperfections of we few to whom the judicial robe is loaned. In providing that federal courts shall be of limited jurisdiction, in refusing to empower the courts to resolve every conceivable grievance, and in prohibiting abridgement of the right of the people to petition the “Government” for “redress of grievances,” the Framers and Amenders writ well.
That wrongs were done to Americans of Japanese ancestry under Executive Order 9066 is disputed by no one involved in this case. The internment of fellow Americans on the basis of race, and out of what now appears to have been an excessive enshrinement of military necessity, sets a scenario for retributive justice. But that is not the issue before us.
The basic issues before us are: (1) does this court have' jurisdiction to hear this appeal? Assuming that question is answered “yes,” (2) did the district court err in dismissing appellants’ “taking” and *257“contract” claims in view of the affirmative defense of statute of limitations?1
Within the judicial process, as elsewhere, there is no free lunch. To reach a feelgood result here, a price must be paid. That price takes the form of what is in my view a disregard of the written law of Congress and precedents of this court, to the substantial injury of the jurisprudence surrounding 28 .U.S.C. § 1346 (1982 & Supp. II 1984). Though sympathy suggests surrender, and compassion counsels capitulation, that price is for me too high.
Convinced that this court lacks jurisdiction, that the majority’s holding frustrates Congress’ intent when it enacted the Federal Courts Improvement Act, that the district court correctly applied the statute of limitations, and that a remedy better for our nation’s jurisprudence and for appellants is available from the Congress, I respectfully dissent.
I. Jurisdiction To Hear This Appeal This appeal should be transferred, under 28 U.S.C. § 1631, and should be heard and decided by a panel of the United States Court of Appeals for the Federal Circuit, a panel on which I would not sit.
Transfer is compelled by 28 U.S.C. § 1295(a)(2), by which Congress vested in the Federal Circuit exclusive jurisdiction over appeals from district court judgments in cases such as this, where the jurisdiction of the district court was based, in whole or in part, on 28 U.S.C. § 1346(a)(2).
Saying “we take jurisdiction on the basis of our reading of the plain meaning of the statutory language,” the majority stands the statute on its head when it holds that this court has appellate jurisdiction because jurisdiction of the district court was based “in part” on 28 U.S.C. § 1346(b) (Federal Tort Claims Act). The majority frustrates the intent of Congress, encourages forum shopping, and directly conflicts with precedent in this court, when it holds that this appeal “falls squarely within the ‘except’ clause of section 1295(a)(2), allowing for jurisdiction in the regional Circuit Court of Appeals,” just because counsel included a tort claim under § 1346(b) with the taking claim under § 1346(a)(2).
A. The Plain Meaning of the Statute.
The statutory phrase “in whole or in part” in 28 U.S.C. § 1295(a)(2) would by itself make the exclusive grant of § 1346 jurisdiction to the Federal Circuit all-inclusive. The statute, however, specifies exceptions where the case was “brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is founded upon an Act of Congress or a regulation of an executive department providing for internal revenue.” (Emphasis added). A literal reading of the statute makes plain that the “except clause” applies only to cases brought in whole under one of the excepted subsections of § 1346. The majority improperly reads the “except clause” as though it also contained the broad jurisdictional grant of “in whole or in part,” a construction clearly contrary to the literal language of the statute and destructive of its intent.
It is simply senseless to say that § 1295 grants exclusive jurisdiction to the Federal Circuit in cases where, as here, district court jurisdiction was based “in part” on § 1346(a)(2) and that § 1295 also grants jurisdiction to the regional circuits (making the first grant non-exclusive) where, as here, district court jurisdiction was based “in part” on § 1346(a)(2). It is equally senseless to nullify the words “in part” in § 1295(a)(2) by proceeding as though the statute granted exclusive jurisdiction to the Federal Circuit only when district court jurisdiction was based “in whole,” that is solely, on a taking claim under § 1346(a)(2).
*258The majority’s construction of § 1295(a)(2) in light of § 1295(a)(1) is equally invalid. In § 1295(a)(1), Congress excluded from the Federal Circuit’s exclusive jurisdiction over cases brought under § 1338 “a case involving a claim arising under any Act of Congress relating to copyrights and trademarks and no other claims under section 1338(a).” The “no other claims” clause was required because there are three fields of law encompassed by the single subsection 28 U.S.C. § 1338(a). The'only “other claim” is one under the patent laws. Hence jurisdiction of cases under § 1338(a) which are brought in whole under the copyright or trademark laws, and which involve no patent claims, are appealable to the regional circuits. The assignment of jurisdiction in §§ 1295(a)(1) and (2) is thus the same. Use of § 1295(a)(l)’s “no other claims” language in § 1295(a)(2) would simply not fit, because these are specific subsections in § 1346, each dealing with a separate field of law.
Section 1346 deals with district court and Claims Court jurisdiction. The except clause of § 1295(a)(2) deals with tax refunds, § 1346(a)(1), money damages for torts, § 1346(b), a series of causes provided for in certain statutes, § 1346(e), quieting title, § 1346(f) and certain tax suits, § 1346(a)(2). It simply makes no sense to say that the “in part” language of § 1295(a)(2) gave jurisdiction simultaneously to the Federal Circuit and regional circuits over appeals from district court judgment whenever the case was brought under § 1346(a)(2) and also under anyone of the sections in the except clause. Nor is it appropriate to read “exclusive” out of § 1295(a)(2).
Further, it is most curious that the majority rests its holding of jurisdiction on the presence of appellants’ claim under the Federal Tort Claims Act, § 1346(b). Appellants never filed an administrative claim, Hohri v. United States, 586 F.Supp. 769, 793 (D.D.C.1984), and thus failed to cross the threshold requirement for suing under the Tort Claims Act. 28 U.S.C. § 2675(a). The majority properly affirms the district court’s dismissal of those claims under Rule 12(b)(1) for lack of jurisdiction. It is difficult to see how claims over which the district court had no jurisdiction can create jurisdiction in this court. The claims under the Tort Claims Act being entirely illusory, they can provide no satisfactory basis for jurisdiction of either the district court or this court.
B. Congressional Intent.
(1) Uniformity
In creating the Federal Circuit, Congress clearly expressed the need to provide “a forum for appeals from throughout the country in areas of the law where Congress determines that there is special need for national uniformity.” S.Rep. No. 97-275, 97th Cong., 2d Sess. 4, reprinted in 1982 U.S.Code Cong. & Ad.News 11, 14 (Senate Reports). Suits against the government for money damages, like those under § 1346(a)(2) (the “Little Tucker Act”) constituted one such area of special and long-recognized need. Indeed, that basic need engendered creation of the Court of Claims in 1855.
Before October 1, 1982, suits against the United States for money damages in excess of $10,000 had to be filed in the Court of Claims, and suits against the United States for $10,000 or less could be filed in either the Court of Claims or in a district court. Appeals from judgments of the Court of Claims were by writ of certiorari to the Supreme Court and appeals from judgments of the district courts were to the appropriate regional Circuit Court of Appeals. As stated in the legislative history “an adequate showing has been made for nationwide subject matter jurisdiction in the areas of patent and claims court [sic] appeals.” Senate Report at 3, reprinted in 1982 U.S.Code Cong. & Ad.News at 13.
After October 1, 1982, suits for more than $10,000 must be filed in the Claims Court, and suits for $10,000 or less may still be filed in a district court. In accord with the intent of Congress expressed in the Federal Courts Improvement Act of *2591982, P.L. No. 97-164, 96 Stat. 25 (1982), however, appeals from judgments in all such suits filed after October 1, 1982, are within the exclusive jurisdiction of the Federal Circuit “to provide reasonably quick and definitive answers to legal questions of nationwide significance.” Senate Report at 3, reprinted in 1982 U.S.Cong. & Ad.News at 13. The Federal Circuit hears all appeals from judgments of the Claims Court. § 1295(a)(3). Congress sought uniformity in the law governing suits under § 1346(a)(2) when it also assigned exclusive jurisdiction to the Federal Circuit over all appeals from all judgments of the district courts in such suits. Thus, the Federal Circuit has been granted exclusive jurisdiction, whether those suits were for more than $10,000 in the Claims Court or for $10,000 or less in a district court.
The majority’s holding here, because it directs appeals on the basis of whether the ad damnum is more or less than $10,000, frustrates Congress’ desire for uniformity in answers to legal questions arising under § 1346(a)(2).
(2) Forum Shopping
The legislative history of § 1295 spells out Congress’ intent to eliminate forum shopping, as was exhaustively discussed in Atari, Inc. v. JS & A Group, Inc., 747 F.2d at 1434-35. That intent was not limited to patent-related cases, but applied equally to those which, like the present case, are filed under the “Little Tucker Act.” Id. at 1437 n. 13.
The majority’s reading of § 1295(a)(2) reinstates the forum shopping evil congress tried to eliminate. Any lawyer worthy of the name is capable, as were the lawyers here, of adding to a “taking” claim under § 1346(a)(2) one or more claims under § 1346(a)(1), 1346(b), 1346(e), 1346(f) or an internal revenue claim under § 1346(a)(2). The majority’s reading of § 1295(a)(2) tells the bar it can obtain jurisdiction of the appeal in this court by inserting any one of such additional claims in the complaint, and may thus escape the statute of limitations governing the taking claim under the majority’s view of the present or similar facts. It is precisely the creation of potential for different results on similar facts (respecting the limitation of actions under § 1346) by which the majority holding provides both opportunity and incentive for forum shopping.
The evil of forum shopping is the same whether a claim added for that purpose is or is not frivolous. This court, moreover, would have to assert jurisdiction to consider whether a claim was or was not added for that purpose. At that point, the evil purpose has been served. That the majority seizes jurisdiction here on the basis of an illusory claim under the Tort Claims Act only compounds the error that lies in exerting appellate jurisdiction not granted by Congress.
To the extent that policy considerations are appropriate, the majority’s creation of a need for multiple appeals in different courts appears unsupportable. Having disposed of appellant’s tort and contract claims, the majority says any future appeal in this case will lie in the Federal Circuit. It hardly fits the dignity of this court to render it a mere way station for the gleaning of forum shopping claims from appeals enroute to the Federal Circuit.
Whatever the district court may do on remand, the Federal Circuit cannot, it would seem, be precluded from holding on appeal that the district court lacked jurisdiction because of the statute of limitations. Surely, comity is not served by the majority’s attempt to set the law of the case respecting the statute of limitations before releasing its grasp.
C. Precedent in this Court
In Professional Managers Ass’n v. United States, 761 F.2d 740 (D.C.Cir.1985), this court held that “[t]he Federal Courts Improvement Act clearly grants the Federal Circuit exclusive jurisdiction over appeals in cases such as this where the district court’s jurisdiction was based in whole or in part on the Tucker Act,” Id. at 743 (emphasis in original). As a basis for its holding, the court noted that “the legisla*260tive history ... construes the ‘in whole or in part’ language quite literally.” Id. at 744. It concluded: “[b]ased on the Senate Report, it would appear that the regional courts of appeals should transfer cases to the Federal Circuit unless immaterial or frivolous Tucker Act claims have been added to a case for purposes of forum shopping ...” Id. Obviously, transfer is equally if not more required where a frivolous additional claim has been added, for purposes of forum shopping, to a wow-frivolous Tucker Act claim.
In Professional Managers, the court noted that § 1295(a)(2) had been a source of confusion in this court, citing Judge MacKinnon’s dissent in Doe v. Department of Justice, 753 F.2d 1092, 1119 (D.C.Cir.1985), and two cases in which this court ordered transfer: Wilson v. Turnage, 755 F.2d 967 (D.C.Cir.1985); and Riggsbee v. Bell, No. 83-2242 (D.C.Cir. Jan. 28, 1985).
Other circuits are in accord with the precedent of this court. See Hahn v. United States, 757 F.2d 581, 587 n. 3 (3d Cir. 1985); Oliviera v. United States, 734 F.2d 760 (11th Cir.1984); cf. Maier v. Orr, 754 F.2d 973, 982 (Fed.Cir.1985) (“[i]n creating this court, Congress assigned it exclusive appellate jurisdiction of district court decisions involving claims for money from the government under § 1346(a)(2)”).
I cannot find in the majority opinion an adequate effort to justify its departure from this court’s precedent.
II. STATUTE OF LIMITATIONS
If jurisdiction to hear the appeal were present in this court, I would affirm the district court’s judgment in its entirety.
I agree with the majority that the applicable rule in this court was stated in Fitzgerald v..Seamans, 553 F.2d 220, 228 (D.C. Cir.1978):
Read into every federal statute of limitations ... is the equitable doctrine that in the case of defendant’s fraud or deliberate concealment of material facts relating to his wrongdoing, time does not begin until plaintiff discovers, dr by reasonable diligence could have discovered, the basis of the lawsuit.
“The basis of the lawsuit,” has been variously characterized as “notice of [the] claim,” Richards v. Mileski, 662 F.2d 65, 71 (D.C.Cir.1981), and as “facts giving notice of the particular cause of action at issue, not of just any cause of action,” Hobson v. Wilson, 737 F.2d 1, 35 (D.C.Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). The thought underlying that standard, however articulated, is plain: courts will not permit a defendant to use the statute of limitations as a shield where he has fraudulently obstructed plaintiff from knowing facts on which suit could be brought.
Whatever role equitable tolling considerations may play in suits between individuals, in suits against the United States courts must recognize the condition attached to the United States’ waiver of its sovereign immunity. Statutes of limitations such as that applicable here, 28 U.S.C. § 2401(a), “must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 287-88, 103 S.Ct. 1811, 1819-20, 1 L.Ed.2d 306 (1983), and cases cited therein.
It is important to note just what was allegedly “concealed” here. Appellants say it is a memorandum from Edward Ennis, Director of the Alien Enemy Control Unit, to the Solicitor General in relation to preparation of the government’s brief in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943)). In that memorandum, Ennis said “we should consider very carefully whether we do not have a duty to advise the Court” of materials drafted by Naval Intelligence Analyst Ringle, in which Ringle gave his opinion that individual loyalty assessments could be expeditiously made. The government did not advise the Court of the existence of Ringle’s views in Hirabayashi, and ambiguously referred to the unreliable nature of General DeWitt’s Final Report in a footnote to its brief in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. *261194 (1944). Though the Court was fully informed by the amicus brief of the Japanese American Citizens League of unchallenged facts indicating that individual loyalty assessments were emminently feasible, appellants leap to the conjectural conclusion that a clear reference to Ringle’s views would have caused the Court to fore-go the deference to military-necessity-in-wartime on which it affirmed in Hirabayashi. So long as the Supreme Court’s decisions in Hirabayashi and Korematsu stood, say appellants, other courts followed them and any suit appellants might have brought would have been foredoomed.
The majority says that “in assessing the import of fraudulent concealment we are first and foremost concerned with its legal effect,” (emphasis in original), that “it is of little significance that defendant has not also concealed his identity or the fact of the injury,” and that tolling is required “if a defendant had achieved the same effect by concealing facts that would prevent a plaintiff from overcoming a seemingly iron-clad defense.” (The majority must mean facts that would enable a plaintiff to overcome a defense.) For the first time, it is held that the statute must be tolled for whatever length of time (here some thirty-five years) it may take for a plaintiff, who knows all about the injury and defendant’s identity, to learn something that might enable him to win.
I respectfully disagree with the majority’s expansion of the doctrine of “equitable tolling” to the point at which it swallows the law of sovereign immunity. As properly applied by the district court, following the guidance earlier supplied by this court, the test for equitable tolling is whether the United States intentionally concealed facts in the course of committing a wrong that prevented appellants from knowing the “basis of the lawsuit.” Fitzgerald v. Sea-mans, 553 F.2d at 228. The failure of the Solicitor General to discuss in his Hirabayashi and Korematsu briefs a memorandum opinion on individual loyalty assessment clearly did not conceal the basis of a lawsuit for the injustices done appellants.
In Hobson v. Wilson, supra, this court, quoting the Supreme Court’s statement in Woods v. Carpenter, 11 Otto 135, 143, 101 U.S. 135, 143, 25 L.Ed. 807 (1879) that “[concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry,” 737 F.2d at 33, held tolling appropriate because Wilson engaged in “some misleading, deceptive or otherwise contrived action or scheme, in the course of committing the wrong, that is designed to mask the existence of the cause of action.” Id. at 34 (emphasis in original).
Hobson was a suit against government employees under the civil rights statutes, not one against the United States under 28 U.S.C. § 1346(a)(2). Considerations of whether concealment occurred during commission of the wrong, and whether it was designed to mask existence of the cause of action, are, however, no less important when the requested tolling would effectuate a judicial waiver of sovereign immunity. When the latter is the case, “[a]s a judicial interpretation of a legislative enactment [statute of limitations], the rule is strictly and narrowly applied.” Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir.1985).
Whatever may be made of the argument that suit would be fruitless in view of Hirabayashi and Korematsu, that argument collapsed entirely about 1950. The district court’s finding that appellants possessed sufficient facts to file a complaint under the Constitution by at least about 35 years ago, 586 F.Supp. at 788, has not been found clearly erroneous — indeed, it has not truly been contested — in the majority opinion. The attempt to circumvent that finding (as based on a “legally defective premise”) is at best utterly unpersuasive. Judge Oberdorfer supported the judgment by finding, correctly I believe, that “[t]he 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 *262necessity finding and marked the beginning of the statute of limitations.” 586 F.Supp. at 790. In my view, that uncontroverted finding requires affirmance.
If it were relevant, the majority’s conjecture that the United States’ defense to a suit by appellants in the late 1940’s or early 1950’s would have been “iron-clad” must be seen as having been adequately treated by the district court. Though noting that the Court’s decisions in Hirabayashi and Korematsu would have constituted a “formidable obstacle,” the district court observed that “diligent advocates” have successfully challenged such decisions in the past, and that such a suit could have been filed long ago. 586 F.Supp. at 788. There is no plausible support in the record for the majority’s bald assertion that “only a statement by one of the political branches could have rebutted the presumption .of deference” due the military authorities. Nor does justification appear for the majority’s election to simply ignore the numerous citations by the district court of instances in which Supreme Court statements were reexamined in subsequent cases.
Moreover, if appellants had sued and lost, they might now have petitioned to reopen the judgment based on “newly discovered evidence.” It is true that courts are reluctant to reopen a long closed judgment absent some overriding consideration. Klapprott v. United States, 335 U.S. 601, 613-15, 69 S.Ct. 384, 389-90, 93 L.Ed. 1099 (1949). Under the majority’s ratio decidendi, however, appellants are litigiously better off for having sat on their rights than they would have been if they had diligently asserted those rights — a result surely not intended by the Congress when it enacted the statute of limitations governing suits against the government.
III. Appellants Are Not Without Remedy
Not to put too fine a point on it, the majority’s dramatic characterization of the government’s brief as saying “the time for justice has passed” is simply unfair. First, every enforcement of the statute of. limitations means the time for justice dispensed by judges has passed. Second, the implication of hard-heartedness is unfounded. The government has not, in its brief or anywhere else in this lawsuit, denied that injustices were suffered by Japanese Americans. On the contrary, the government has provided the court with a forthright summary of published scholarly works detailing those injustices. See P. Irons, Justice at War: The Story of the Japanese-American Internment Cases (1983); M. Grodzins, Americans Betrayed: Politics and Japanese Evacuation (1974); Rostow, The Japanese-American Cases — A Disaster, 54 Yale L.J. 489 (1945). All the government briefs can be fairly characterized as saying is that Congress has not waived sovereign immunity from lawsuits not timely filed. Government counsel, wherever may lie their sympathies, have no authority to waive sovereign immunity.
Moreover, the majority’s characterization misperceives the real thrust of the statute: that “justice,” however defined, no longer lies within the province of courts to provide. The proper forum for appellants’ claims is the Congress.
At oral argument, counsel for both sides acknowledged the pendency in Congress of bills designed to compensate appellants. Those bills would carry out the recommendations of the 1982 Report of the Commission on Wartime Relocation and Internment of Civilians: Personal Justice Denied, the Commission having been established by Congress in Pub.L. 96-317, 94 Stat. 964 (July 31, 1980), codified at 50 U.S.C. § 1981 App. note. When Congress has begun a process of providing justice it has made unavailable through the courts, no warrant appears for a heavy handed intervention of lawyers, lawsuits, and judges to frustrate that process.
The investigative powers of the Congress are superior to those of a court, and, though its processes often seem slow, Congress may give “justice” superior to that available to appellants in this lawsuit in which recovery is now limited to $10,000 or less. One such bill, S. 1053, 99th Cong., 1st *263Sess., 131 Cong.Rec. S5222-5235 (daily ed. May 2, 1985) (noted here as a public record), provides for individual payments of $20,000 and for making such payments directly to individuals, without subtraction of all the litigation costs faced by appellants in this case. See also H.R. 442, 99th Cong., 1st Sess., 131 Cong.Rec. E61-62 (daily ed. Jan. 3, 1985).
Alternatively, Congress may elect to waive immunity. The “Congressional Reference Cases” provide a voluminous history of instances in which Congress has waived immunity of the United States pursuant to 28 U.S.C. §§ 1492 and 2059. See Bennett, Private Claims Acts and Congressional References, Committee on the Judiciary, 90th Cong., 2d Sess. (Comm. Print 1968), reprinted from 9 U.S.A.F. JAG L.Rev. 9 (1967). Following enactment of a bill, the proper forum for such cases is the Claims Court. As Judge Bennett (now of the Federal Circuit) has written:
Fairly definite and reliable doctrines have developed in the congressional reference field. The Court of Claims has handled over 100 such cases since World War II. While numerically these cases thus represent only a small part of its total caseload, the complexity, importance and amount of money involved in such cases are often significant. Such cases have represented a complete cross section of the types of cases the court handles when they fall within its general jurisdiction.
Comm. Print at 7.
Conclusion
As Congress has recently and again reminded the judiciary, “the federal courts are courts of limited jurisdiction.” Senate Report at 18, reprinted in 1982 U.S.Code Cong. & Ad.News at 28. When courts act beyond their jurisdiction, damage done the law is an ongoing injury to our entire society. It is of “import most grave” and chips away at a “foundation in our constitutional scheme described as the separation of powers.” United States v. Boe, 543 F.2d 151, 158 (CCPA 1976). The majority’s decision, in my view, rests not on the jurisdiction and precedent of this court, but on a proper sense of outrage and a laudable desire to do “justice.” I share those sentiments, but opt for equal justice under law.
. If this court had jurisdiction, I would concur in the majority’s affirmance of the district court's dismissal of the tort claims for lack of jurisdiction, and in the majority’s affirmance of the district court’s denial of the request for declaratory relief. Because the district court did not reach the issue, I would say nothing about the effect of the Japanese-American Evacuation Claims Act, 50 U.S.C. § 1981-87.