Opinion
MEMORANDUM AND ORDER RE EQUITABLE TOLLING
CHARLES BREYER, District Judge.
Now before the Court is defendant's motion to dismiss plaintiffs' second amended complaint based on the statute of limitations. Having carefully considered the memoranda submitted by the parties, and having had the benefit of oral argument, the Court hereby GRANTS defendant's motion to dismiss.
BACKGROUND
I. Factual Background
Since the Court has provided a detailed background in previous orders, a brief review of the relevant facts is all that is required here.
With the outbreak of World War II, many American workers left their domestic jobs and joined the war effort. To address the resultant labor shortage, the United States looked to Mexico. On August 4, 1942 the United States and Mexico entered into the first in a series of agreements under which Mexican workers would come to work in the United States. This first agreement covered agricultural workers.
The 1942 agreement between Mexico and the United States provided that the United States would enter a separate contract with each individual worker, also known as a bracero. The United States then subcontracted the bracero to the actual farmer or farmer association. Both the 1942 agreement between Mexico and the United States and the standard contract governing the relationship between each bracero and the United States provided that ten percent of each worker's wages be retained and deposited into a savings fund. Upon proper application, the savings fund deductions were to be returned to the bracero when he returned to Mexico.
On April 26, 1943, the agreement between Mexico and the United States was amended. Under the amended agreement, the United States deposited the ten percent withholding into the Wells Fargo Bank account of the Bank of Mexico. The Bank of Mexico was then to forward the funds to the Mexican Agricultural Credit Bank, which was to return the funds to the agricultural braceros upon their return to Mexico.
By agreement between the United States and Mexico, all savings fund deductions were terminated on January 1, 1946. However, some braceros continued to work in the United States under the original agreements, as amended to exclude the savings fund and otherwise, through December 31, 1947.
With the problem of illegal immigration continuing unabated, in 1948 the United States and Mexico entered into another agreement. Notably, under this new agreement, each bracero entered into a contract directly with his employer in the United States. The United States was no longer a signatory to the individual work contract. Under this agreement, which was in effect from February 1948 through October 1948, the employer again withheld ten percent of each worker's wages. However, the withheld wages were to be returned directly to the bracero in the form of a check upon termination of the work contract. The check was redeemable only when endorsed by the Immigration and Naturalization Service as the worker exited the United States on return to Mexico.
A new international agreement was again negotiated in 1949. Under its terms, the Mexican worker again contracted directly with his United States employer. Under this program, however, no savings deductions of any kind were authorized. The last agreement between the United States and Mexico expired December 31, 1964.
The United States and Mexico also entered into a similar agreement to supply labor to the railroad industry in 1943. The agreement was identical in all material respects except that the Bank of Mexico was to forward the withheld wages to the Mexican National Savings Bank for return to the braceros. As with the agricultural program, all savings fund deductions were terminated as of January 1, 1946. The railroad braceros program terminated in early 1946 and was never revived.
II. Procedural Background
Senorino Ramirez Cruz, et al. v. United States, et al., (No. 01-0892), was filed in this Court on March 2, 2001. On March 20, 2002, De La Torre, et al. v. United States of America, et al., (No. 02-1942), Chavez, et al. v. United States of America, et al., (No. 02-1943), and Barba, et al. v. United States of America, et al., (No. 02-1944) were transferred to this Court from the U.S. District Court for the District of Columbia. On April 19, 2002, pursuant to Federal Rule of Civil Procedure 42(a), this Court consolidated the three transferred cases (collectively referred to as "De La Torre") for purposes of discovery and motion practice.
By order dated August 23, 2002, this Court dismissed all of the putative class actions in Cruz v. United States , 219 F.Supp.2d 1027, 1044 (N.D. Cal. 2002) ("Cruz I"). In particular, the Court found that the "Mexican defendants" were immune from suit in the United States and that the causes of action against Wells Fargo bank failed to state a claim entitling plaintiffs to relief. The Court also dismissed with prejudice, plaintiffs' claim against the United States for breach of fiduciary duty on the grounds that no fiduciary relationship existed.
All remaining claims against the United States were dismissed as time-barred under 24 U.S.C. section 2401(a), which provides that "every civil action commenced against the United States [must be] filed within six years after the right of action accrues"-in this case, by 1953. The Court rejected plaintiffs' equitable tolling arguments on the grounds that "the braceros knew the facts underlying their injury and its cause, " which "is all that is required for the statute of limitations to begin to run." Slip. Op. at 24. However, the Court gave plaintiffs leave to amend their complaint "to plead facts which, if shown, would entitle them to equitable tolling of the statute of limitations." Id.
On June 24, 2003, the Court reconsidered the August 23, 2002 ruling, and determined that plaintiffs had sufficiently stated a claim against the United States for breach of fiduciary duty; all other rulings were unchanged.
On September 26, 2002, the De La Torre plaintiffs sought leave to file an amended complaint that not only re-plead the Tucker Act claim with facts supporting equitable tolling, but also alleged a new cause of action under the Administrative Procedures Act ("APA"). The Court granted the motion for leave to amend the complaint in a ruling from the bench on December 6, 2002. On June 13, 2003, plaintiffs filed the amended complaint.
On November 10, 2003, the Court granted defendant's motion to strike the amended complaint because it added claims not addressed in plaintiffs' motion or proposed amended complaint, nor did it adhere to the Court's order from the bench on December 6, 2003.
On November 26, 2003, plaintiffs filed another motion for leave to file an amended complaint. On January 16, 2004, defendant filed a motion to dismiss. Defendant's motion to dismiss sought to dismiss plaintiffs' proposed amended complaint (filed with the motion for leave to amend on November 26, 2003). By order of April 14, 2004, the Court granted plaintiffs' motion for leave to file an amended complaint and granted in part and denied in part defendant's motion to dismiss. Accordingly, the only remaining claim in this case is the contract claim under the "Little" Tucker Act, 28 U.S.C. § 1346(a)(2) with respect to only those plaintiffs that allegedly were under contract with the United States prior to 1946, and have alleged equitable tolling. Plaintiffs' amended complaint alleges that the following three plaintiffs meet that criteria: Francisco Prado Camacho, Roberto Hernandez Espinoza, and Ruben Regoso.
DISCUSSION
I. Equitable Tolling
The three remaining plaintiffs' only remaining claim is a breach of contract claim against the United States under the "Little" Tucker Act, 28 U.S.C. § 1346(a)(2). The claim is based on an alleged breach of the express contract that each bracero signed with the United States. If timely, this would be a cognizable claim because the United States has waived its sovereign immunity under the "Little" Tucker Act. The United States maintains, however, that this claim is now time-barred under the applicable six-year statute of limitations. See 28 U.S.C. § 2401(a); Bray v. United States , 785 F.2d 989, 990 (Fed. Cir. 1986). Because it is undisputed that plaintiffs did not file their claim within the six years of the events giving rise to their claim, the sole question before the Court is whether the statute of limitations should be equitably tolled.
While the United States suggests that equitable tolling may not even be available for the statute at issue, the Court need not decide this issue because plaintiffs have not made a sufficient factual showing to invoke equitable tolling in this case.
A. Evidence Regarding Equitable Tolling
1. Ruben Regoso
In the complaint, plaintiffs allege that Mr. Regoso, now 79 years old and residing in Chicago, labored as a railroad bracero from 1943 to 1946, and as an agricultural bracero from 1946 to 1947. The complaint states that Mr. Regoso did not know that deductions were taken from his wages pursuant to the savings fund provisions, and thus did not know of his injury or his possible cause of action until this lawsuit was filed. After confirming the dates of his work as a bracero, Mr. Regoso testified at his deposition as follows:
Based on the Court's prior rulings, the only time relevant to plaintiffs' complaint is for labor done prior to 1946.
A.... It took about two or three months to get the contract signed to come to the United States.
Q. [Mr. Tyler, counsel for the United States] You eventually signed a contract?
A. Right.
Q. Do you read and write, or did you read and write at that time?
A. No. Well, I read and write in Spanish, not English.
Q. Did you read and write Spanish at that time?
A. Yes.
* * *
[Mr. Regoso was then showed a copy of the standard form contract.]
Q. Is that document familiar to you?
A. Oh yes. We didn't get one of these. We didn't get nothing, not a paper at all.
Q. But you signed a contract you said?
A. Yes.
Q. Do you think that's a copy of the contract that you signed?
A. Yes.
* * *
Q. Is it your testimony this morning that you cannot recollect whether or not you read this contract prior to signing it?
A. I don't remember. Too many years.
Q. Did you ask anybody any questions about this contract?
A. Oh, yes, before we come over here.
Q. What kind of questions did you ask?
A. How much we were going to get paid an hour and everything. We came for six months [sic] contract. If you want to stay, you sign another contract for another six months. We were working for six months.
* * *
Q. Did you understand what amount of wages you would earn upon your arrival to the United States?
A. No, sir.
Q. You did not ask that in Mexico City?
A. No, sir.
Q. Did you ask if you would receive any benefits such as medical?
A. No, sir, nothing.
Q. Did you ask whether the United States Government might take taxes from your wages, for example?
A. No.
* * *
A.... You know, when you come from a country like that, you don't know nothing. Do this, do that, you don't know anything. You don't ask no questions at all.
* * *
Q. So concentrating in March 1944 [when the deponent stated he signed a second contract as a Bracero], did you ask - Well, one, did you read that contract before you signed it?
A. No. No, we just signed the contract because we know we want to stay another six months. Every six months if you want to stay, you sign another contract.
Q. Did you ask about any deductions that might [be] taken out of your wages?
A. No, sir, we don't even know we don't have any money. If they paid us savings, we didn't ask nothing.
Q. Did you ask any of your friends about this contract or its terms?
A. Nothing. We had interpreter guy from Texas. He didn't let us know nothing. He didn't say nothing to us. All he tell us was to go to work. That's it.
* * *
Q. Did you reside in Mexico City for a period of time [after returning from the Braceros program]?
A. Yes, I as there for a while, yes.
Q. Did you hear of anybody talking about the savings fund deductions at that time?
A. Yes, I heard something, but they don't give us nothing.
Q. But what did you hear about the savings fund deductions?
A. I heard 10 percent or something like that, but then they didn't give us nothing.
Q. When was this?
A. When we went back to Mexico.
Q. So that would be in September of 1945?
A. Yes, right.
Q. So you heard about 10 percent deductions?
A. Uh-huh.
Q. Did you understand at that time that this was money owing to you or Braceros?
* * *
A. Yes, but....
Q. Did you make any attempt to find out more about the savings fund deduction?
A. No.
Q. Did you go to the Mexican Government?
A. No, sir. You know why? Because about two months later I came back to the United States and worked for the farms....
* * *
Q. But in that time frame, between September of 1945 and when you returned to the United States, you heard of the savings fund deduction?
A. Yes, I heard of something but they didn't give us nothing.
* * *
CROSS-EXAMINATION
Q. [Mr. Ramirez, counsel for plaintiffs]... Going back to 1945 when you came back from having worked in the Bracero Program, when you returned back from the program to Mexico -
A. Nobody told us anything.
Q. - did you know you could go to a Government office in Mexico to get back the money that was deducted pursuant to the savings fund provision?
A. No.
Q. Of the savings fund?
A. No, nothing.
Q. Did you know that you could go to the bank to get this money?
A. No, I didn't know nothing.
Q. Did you know that you had a right to sue the Mexican Government to return to you this money?
A. No, no.
Q. Did you know that you had a right to sue the United States Government to have this money returned to you?
A. No.
Q. Did you know that you had a right against the banks that might have held this money?
A. No, I didn't know nothing until I'm here now.
* * *
REDIRECT EXAMINATION
Q. [Mr. Tyler] Were these [the documents that you signed in Mexico City before going to the United States] contracts? Did you know them to be contracts as opposed to other kinds of documents or papers?
A. No, sir.
Q. Did you know what kind of documents these were at all?
* * *
A. No.
Q. Did you read these documents before you signed them?
A. I don't remember, sir.
Regoso Depo. 9:4-36:14.
2. Francisco Prado Camacho
In the complaint, plaintiffs allege that Mr. Camacho, who was born in 1923, labored as an agricultural bracero from 1942 through 1949. The complaint alleges that Mr. Camacho was aware that deductions were taken from his wages, but did not know that deductions were taken pursuant to the savings fund provisions. At his deposition, Mr. Camacho acknowledged that he cannot read or write in Spanish (and presumably not in English). From reading the transcript it appears that the interpreter and the attorneys had a very difficult time understanding Mr. Camacho and communicating with him.
At his deposition, Mr. Camacho had difficulty remembering many of the facts surrounding the circumstances of this case. In particular, he did not remember when he first worked in the United States, he did not remember whether he had signed a contract with the United States, he did not remember the name of his employer in the United States, nor did he remember how much he was paid for his labor. He testified as follows:
Q. [Mr. Tyler] Do you have any memory of signing a paper like that when you came to the United States?
A. I don't remember.
Q. Sir, did you ask what wages you would earn while working in the United States?
A. No, no. Not until we worked did they pay us.
Q. Before that, did you ask what you would be paid once you began working?
A. No, no, we didn't ask.
* * *
Q. Do you remember the name of your American employer when you first arrived in the United States?
* * *
A. No, no, I don't remember never.
* * *
Q. Did you ever ask whether any deductions were taken from your wages?
A. No, no, I didn't ask.
Q. Did you ever ask whether any tax was taken from you wages?
A. Yes, this, yes.
Q. Were taxes taken from your wages?
A. Yes, yes, yes.
Q. How did you know that?
A. We saw and they said it there, yes, yes.
* * *
Q. Did anybody explain to you that deductions were being taken from your wages?
A. Yes, yes.
Q. Did they explain what deductions were being taken?
A. I don't understand you.
Q. Did they explain the purpose for taking these deductions?
A. For the taxes.
THE INTERPRETER: And I didn't hear what he said after that. Sorry.
MR. RAMIREZ: Ask him again what he said.
A. Yes, for this, for this.
Q. I'll have to go over this once again. Senor, taxes were taken from your wages?
A. Yes.
* * *
THE INTERPRETER: I always use "taxes" and they always understand. But I said "impuestos" and he understood "taxes" before that.
A. They took them away from one, the taxes.
MR. RAMIREZ: He also said one would buy something and they would take out taxes.
* * * [off-the-record discussion]
Q. Senor, each time you were paid wages, did you understand that part of your wages were deducted?
A. No, no, we didn't realize it. They didn't tell us.
Q. You never understood - I thought that you stated earlier this morning that you understood that taxes had been taken out.
A. But they didn't tell someone. They didn't tell -
MR. RAMIREZ: They didn't tell us. They didn't tell one.
A. One.
Q. They didn't tell you that deductions were being taken? Is that what you are saying, Senor?
A. No.
Q. Did you ever ask them whether any amount of money was being deducted from you wages?
A. No, I didn't ask them.
* * *
Q. Senor, I want to speak to you about the savings fund deductions.
A. Yes.
Q. Do you understand what I mean by that term?
A. No, I don't understand.
Q. How often were you paid when you were at the United -
A. The savings fund deduction is what they took out of one's paycheck here. No?
Q. Yes. Is that your understanding of the term, Senor?
A. Yes, yes.
Q. When did you first know that th[e] savings fund deduction was taken from your wages?
A. Right afterwards, soon afterwards it was spoken, yes.
Q. I don't understand you, sir. When you say "soon afterwards, " soon after what?
A. It's the words of one.
MR. RAMIREZ: It's the words of one, the words I use. It's just a word I use.
Q. Let me repeat the question. I'm referring to the savings fund deductions.
A. Yes.
Q. Can you remember when you first learned that savings fund deductions were taken from you wages?
A. Yes, it was the first time that we came, yes.
Q. Sir, did you, upon your return to Mexico after working in the United states, ever ask for the return of your savings fund deductions?
A. No, I didn't no. No, I didn't ask. No, nothing.
Q. Did you know of anyone who sought payment of his savings fund deductions?
THE INTERPRETER: Repayment?
MR. TYLER: Repayment.
A. No, I don't have any knowledge.
Q. Did you ever - did you keep the piece of paper that you signed when you went to the United States?
A. No. They were all lost. They were all lost, yes.
* * *
CROSS-EXAMINATION
Q. [Mr. Ramirez] Senor Prado, do you remember that Mr. Tyler spoke to you about the savings funds of the braceros?
A. Yes.
Q. Did you - when you returned to Mexico, did you know that you were entitled to receive - to receive money that had been deducted from your salary for a savings fund?
A. Yes.
Q. Let me repeat the question. When you went back to Mexico after you finished working the braceros program -
A. Yes.
Q. - did you go to a government office to get money back that was taken from your salary?
A. No, no, I never went.
Q. Did you know that you had a right to go to a government office and get that money back.
A. No, I didn't know.
Camacho Depo. 13:10-30:8.
3. Roberto Hernandez Espinosa
In the complaint, Mr. Espinosa alleges that he worked as a railroad bracero from 1944 through 1945. Mr. Espinosa alleges that he was aware that deductions were taken from his wages for food and shelter, but did not know that deductions were taken pursuant to the savings fund provision. Mr. Espinosa's deposition transcript is difficult to follow and does not provide much clarity. There are often conflicting answers to single questions, and there appears to be a lack of comprehension by the interpreter and the attorneys. At his deposition, Mr. Espinosa testified as follows:
Q. [Mr. Tyler] Can you explain how you contracted to become a braceros?
A. Well, it was in a stadium. In the stadium they spoke to one with a microphone and we all went there. We all went there -
MS. RISO [interpreter]: Gathered together.
A. - together in the stadium and they spoke to us, yes.
* * *
Q. Did you at any time sign a piece of paper -
* * *
A. A lot of contracts were signed.
Q. Did you sign more than one contract?
A. Yes.
Q. Did you understand the purpose for the contract?
A. To come to work.
MR. RAMIREZ: I think he's using "contract" as -
MR. TYLER: And I'm trying to explore that. And what I am attempting to do is find out whether he signed other pieces of paper than a contract. And I can ask that question to him and let me ask that question.
THE INTERPRETER: Okay.
MR. TYLER: Did he sign other pieces of paper other than a contract?
THE INTERPRETER: Did he assign?
Q. No, sign. Did he sign other pieces of paper other than a contract?
A. No, after that, no. Yes.
Q. But, Senor, so that I understand, you signed more than one piece of paper?
A. No - yes, very.
Q. Did you understand that these were contracts as opposed to other kinds of paper?
A. No, I didn't no. No, nothing more than say to sign here. There were a lot of tables.
Q. Do you know how to read or write?
A. Yes.
Q. And did you know how to read at that time?
A. Yes.
* * *
[Mr. Espinosa was then showed a copy of the standard contract.]
Q. Senor, if you could take your time and review this document for me please. My question is: Have you ever seen a document like this before?
A. Yes, yes, I've seen it, yes. I can't see anymore. I can't read it.
* * *
Q. Senor, do you recognize that document?
A. No.
* * *
Q. Let me back up. Do you recall when you signed the contract in order to to participate in the braceros program?
A. No, no, I don't remember. No, I don't remember.
Q. Did you read the contract before you signed it?
A. No, no, nothing more. I signed here. I signed here on all of them.
MR. RAMIREZ: I think he's saying that - he's sort of saying like people were telling him, "Sign here, sign here, sign here, " so he was being directed to just sign.
THE INTERPRETER: I though he said - (speaking in Spanish.)
Q. Were you given a copy of that contract, senor?
A. No.
Q. Did you ask for a copy of this contract at the time you signed it?
A. No, nothing.
Q. Did you ask anybody what the contract said?
A. No.
Q. Did you ask what wages you would be paid?
A. No, not either.
Q. Did you ask what kind of work you would be required to do?
A. No, no.
Q. Did you ask whether any deductions would be taken from your wages pursuant to this contract?
A. No, no.
Espinosa Depo. 7:17-15:2.
B. Legal Standard for Equitable Tolling under the Tucker Act
In suits against the federal government, the statute of limitations is a jurisdictional issue because the United States has not waived its sovereign immunity to stale claims. As stated by the Ninth Circuit:
The doctrine of sovereign immunity precludes suit against the United States without the consent of Congress; the terms of its consent define the extent of the court's jurisdiction. The applicable statute of limitations is a term of consent. The plaintiff's failure to sue within the period of limitations is not simply a waivable defense; it deprives the court of jurisdiction to entertain the action.
Sisseton-Wahpeton Sioux Tribe, of Lake Traverse Indian Reservation, North Dakota and South Dakota v. United States , 895 F.2d 588, 592 (9th Cir. 1990). Moreover, "equitable tolling against the federal government is a narrow doctrine." Martinez v. United States , 33 F.3d 1295, 1318 (Fed. Cir. 2003) (citing Irwin v. Department of Veterans Affairs , 498 U.S. 89 (1990)). "A cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when all events have occurred to fix the Government's alleged liability, entitling the claimant to demand payment and sue here for his money.'" Martinez , 333 F.3d at 1303.
Here, plaintiffs bear the burden of proving that this Court has jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.") (citations omitted).
Plaintiffs stated at oral argument that defendant has the burden to establish equitable tolling. The Court concludes that such a burden would be illogical and is not supported by the case law. Plaintiffs stated that the sole support for this contention was one sentence in Martinez v. United States , 333 F.3d 1295, 1317 (Fed. Cir. 2003) in which the court quotes language from Irwin v. Department of Veterans Affairs , 498 U.S. 89, 95-96 (1990) stating that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Plaintiffs argue that this "rebuttable presumption" means that defendant has the burden on this motion regarding equitable tolling. Plaintiffs misread Martinez and Irwin. The rebuttable presumption referred to in these cases is whether equitable tolling is even available in actions against the United States; it does not deal with the burden once it is determined that equitable tolling applies. See United States v. Brockamp , 519 U.S. 347, 349-50 (1996); Alvarez-Machain v. United States , 107 F.3d 696, 700-01 (1997).
As the Federal Circuit recently explained, in a Tucker Act claim against the United States, plaintiffs can meet either of two standards to establish equitable tolling. See Martinez, 333 F.3d at 1318-19. Under the first standard, "mere excusable neglect is not enough to establish a basis for equitable tolling; [rather, ] there must be a compelling justification for delay, such as where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.'" Id. at 1318 (quoting Irwin, 489 U.S. at 96). Under the second standard, "accrual of a claim against the United States is suspended... until the claimant knew or should have known that the claim existed." Id. at 1319.
Because this suit is brought under the "Little" Tucker Act, an appeal from this Court's judgment in this case will be reviewed on appeal by, and decided under the law of, the Court of Appeals for the Federal Circuit. See 28 U.S.C. § 129 5(a)(2).
While other Federal Circuit cases have found that there are more than two circumstances that allow for equitable tolling, such as where "the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period" and "when a party has been mentally incapacitated, " see Barrett v. Principi , 363 F.3d 1316, 1318 (Fed. Cir. 2004), none of those basis are applicable to this case.
The Ninth Circuit applies this same standard. In Alvarez-Machain v. United States , 107 F.3d 696, 700 (9th Cir. 1997), the court explained that in general, a cause of action accrues when "the plaintiff knows, or in the exercise of reasonable diligence should know, of both the injury and its cause." When a plaintiff seeks to bring a claim outside of that time frame under the doctrine of equitable tolling, the plaintiff may do so if "[(1)] the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant.... [Or, (2)] extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time." Id. at 701 (quoting Seattle Audubon Soc. v. Robertson , 931 F.2d 590, 595 (9th Cir. 1991)). In Alvarez-Machain, the court then went on to look at the totality of the circumstances to determine if equitable tolling was available.
C. Analysis
Plaintiffs were entitled to demand payment of their savings fund deductions upon their return to Mexico in approximately 1945. Accordingly, under the six-year statute of limitations, plaintiffs would have needed to bring their claims by the end of 1951. Plaintiffs assert that their claims are not time-barred because the statute of limitations has been equitably tolled. However, plaintiffs have failed to meet either of the two standards explained in Martinez to establish equitable tolling. Under the first standard, plaintiffs have not provided any evidence of a "compelling justification for delay." Plaintiffs allege in their complaint that "The braceros' lack of awareness of this information was caused by the failure of defendants effectively to inform or advise the braceros of such information and/or defendants' concealment of such information, or crucial portions thereof, from the braceros"; however, plaintiffs do not provide any evidence to support this allegation.
Under the second standard, accrual of plaintiffs' claim against the United States is suspended until plaintiffs knew or should have known that the claim existed. However, this "accrual suspension' rule is strictly and narrowly applied:... [The plaintiff] must either show that defendant has concealed its acts with the result that plaintiff was unaware of their existence or it must show that its injury was inherently unknowable' at the accrual date.'" Martinez , 33 F.3d at 1319 (quoting Weckler v. United States , 752 F.2d 1577, 1580 (Fed. Cir. 1985). Plaintiffs have not provided any evidence that defendant concealed its acts; moreover, plaintiffs have not established that their injury was "inherently unknowable" at the accrual date.
Importantly, all three plaintiffs indicated at their depositions that they did not ask any questions of the officials or of their employers. "One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence." Baldwin County Welcome Center v. Brown , 466 U.S. 147, 152 (1984). Nothing in plaintiffs' complaint or depositions suggests that plaintiffs could not have attempted to bring these claims sooner. See In re World War II Era Japanese Forced Labor Litigation , 164 F.Supp.2d 1160, 1181 (N.D. Cal. 2001) ("Japanese Forced Labor Litigation"), aff'd, Deutsch v. Turner Corp. , 324 F.3d 692, 717-18 (9th Cir. 2003). Moreover, plaintiffs' depositions indicate that they failed to act diligently because they asked no questions and made no effort to obtain information.
The court in In re World War II Era Japanese Forced Labor Litigation addressed a similar situation. In that case, Chinese and Korean nationals sued several Japanese corporations seeking compensation for forced labor required of them during World War II. Id . Like plaintiffs here, the plaintiffs in the Japanese Forced Labor Litigation were extremely sympathetic and alleged serious misconduct and inhumane treatment. However, as here, the plaintiffs in that case brought their claims some fifty years after the injuries alleged, and despite plaintiffs' allegations of wrongdoing on the part of the defendants, the court concluded that the statute of limitations had not been tolled. Id . The court stated as follows:
The Korean and Chinese plaintiffs do not assert reasons why their claims could not have been brought under the [Alien Tort Claims Act] within ten years of the war's end.... Their reference to the Japanese government's alleged suppression of similar claims brought by Korean forced laborers in Japan shortly after the war does not explain why the same claims could not have been alleged in a United States court. Moreover, to the extent the Korean and Chinese plaintiffs contend that they were not aware of the opportunity to bring these claims in the United States, "mere ignorance of the cause of action does not, in itself, toll the statute." Volk, LA v. DA Davidson & Co. , 816 F.2d 1406, 1416 (9th Cir.1987).
Id.
The same is true with plaintiffs here. Plaintiffs have not adequately established any reasons why their claims could not have been brought within six years of their return to Mexico. Plaintiffs' allegations regarding the conditions during their term as braceros does not explain why the claims could not have been asserted. Moreover, one of plaintiffs' primary arguments for why they are entitled to equitable tolling is that they were not aware that they had a claim and did not know of their legal rights; however, as reiterated in In re World War II Era Japanese Forced Labor Litigation, "mere ignorance of the cause of action does not, in itself, toll the statute." Id . (quoting Volk, LA , 816 F.2d at 1416).
Given the knowledge plaintiffs allege they had, and given their duty to undertake some reasonable efforts, it is of no consequence that the plaintiffs allege that they did not know specifically where to go to receive their payment, or that they allege that they were unaware that they had a legal rights against the United States, the Mexican government, or the banks, even if such ignorance was the result of unsophistication or illiteracy. See Cruz , 219 F.Supp.2d at 1045. All three plaintiffs had the means by which to discover the existence of the savings fund deductions. All three plaintiffs could ask questions, and had they done so, they would have discovered their entitlement to the savings. While plaintiffs may argue that they would not have received the information even if they had asked the questions, plaintiffs have provided no evidence to the Court to support such an argument, and, in fact, the incentives are such that the Court believes the information would have been accurately conveyed or otherwise easily obtained. The employers had paid the deductions to the government under the terms of the contract and, therefore, had an incentive to inform the employees why they were receiving reduced wages. Additionally, the United States government had an incentive to inform the braceros of the deductions because one of the primary purposes of the deductions was to ensure that braceros did not illegally remain in the United States, but rather, had a financial incentive to return to Mexico. The deposition transcripts indicate that none of these three plaintiffs ever asked about his wages or the contract or made any other reasonable efforts to obtain information. Accordingly, they are not entitled to the benefits of equitable tolling.
Additionally, plaintiffs have offered no evidence that the United States engaged in any misconduct that would result in plaintiffs missing the filing deadline. To the contrary, the government has offered evidence that it had a standard contract that informed braceros of the savings fund program and that the contract was in Spanish and English. This standard form contract that was allegedly entered into by all three plaintiffs (and which was re-entered into on several occasions), was a public document, as were the international agreements between the United States and Mexico that created the braceros program and the savings fund deductions. The 1942 version of the standard contract language for agricultural braceros provided the following:
The Worker agrees that ten percent (10%) of his wages may be deducted and authorizes the Patron [the government] to receive such amount from the Employer and to place it on deposit to be refunded to him on his return to his place of origin, or as soon as practicable, in the form of credits to his account in the Agricultural Credit Bank of Mexico.
Mr. Regoso testified that he signed the contract and was able to read and write Spanish at the time of signing. While he does not remember whether he read the contract, and he was not given a copy of the contract, this is insufficient to establish that the United States engaged in any misconduct. In fact, Mr. Regoso's testimony establishes that he may have had actual knowledge of the savings fund deductions when he returned to Mexico and therefore the statute of limitations would have begun to run at that time.
Q. Did you reside in Mexico City for a period of time [after returning from the Braceros program]?
A. Yes, I as there for a while, yes.
Q. Did you hear of anybody talking about the savings fund deductions at that time?
A. Yes, I heard something, but they don't give us nothing.
Q. But what did you hear about the savings fund deductions?
A. I heard 10 percent or something like that, but then they didn't give us nothing.
Q. When was this?
A. When we went back to Mexico.
Q. So that would be in September of 1945?
A. Yes, right.
Q. So you heard about 10 percent deductions?
A. Uh-huh.
Q. Did you understand at that time that this was money owing to you or Braceros?
* * *
A. Yes, but....
Q. Did you make any attempt to find out more about the savings fund deduction?
A. No.
Q. Did you go to the Mexican Government?
A. No, sir. You know why? Because about two months later I came back to the United States and worked for the farms....
* * *
Q. But in that time frame, between September of 1945 and when you returned to the United States, you heard of the savings fund deduction?
A. Yes, I heard of something but they didn't give us nothing.
Regoso Depo. 22:15-25:2.
While Mr. Regoso testified that he did not know where specifically to receive payment of his savings fund deduction, nor did he know that he had any legal rights against the Mexican government, the United States government, or the banks, that is irrelevant to whether Mr. Regoso was induced or tricked by the United States' misconduct into allowing the filing deadline to pass. Again, he has offered no evidence of misconduct on the part of the United States, or another compelling justification for tolling.
Mr. Camacho's testimony was contradictory and difficult to understand. The Court does not believe that this was based on any intention to deceive, but was purely due to Mr. Camacho's faded memory of these events. While his testimony is conflicting, there is at least some evidence that Mr. Camacho was aware that deductions were taken from his wages. He stated that someone explained that deductions were taken from his wages and that the purpose of the deductions was for taxes. He then made several confusing statements about when he knew that the savings fund deductions were taken from him. On cross-examination, when his counsel asked whether he knew he was "entitled to receive money that had been deducted from [his] salary for a savings fund, " he answered "Yes." Camacho Depo. 29:18-22. While plaintiffs' counsel attempted to "repeat the question, " what he did, in fact, was ask a different question, which was whether Mr. Camacho had gone to the government office to collect the money owed and whether he knew he had a right to go to the government office to collect the money. Id. at 29:23-30:8.
Mr. Camacho is the most sympathetic of the three plaintiffs because he is illiterate; therefore, he was unable to read the contract even if it were presented to him. However, that is not sufficient to establish that the United States engaged in any misconduct. Mr. Camacho testified that he did not ask any questions of anyone regarding his wages. Mr. Camacho's failure to inquire cannot constitute evidence of misconduct on the part of the United States. Moreover, while Mr. Camacho is illiterate, he is not unable to communicate. His illiteracy did not prevent him from asking basic questions about the conditions of his working situation, such as the wages he would be paid and the other terms of his contract. Yet, Mr. Camacho stated that he did not ask any such questions.
Mr. Espinosa indicated that he did not read the contract when he signed it. However, he also indicated that he never asked any questions regarding how much he would be paid, what was in the contract, or what kind of work he would do.
While the Court acknowledges that plaintiffs have offered evidence that they were not necessarily treated respectfully or otherwise appropriately, that is not the standard for whether the statute of limitations should be tolled. Instead, plaintiffs must establish that the United States' misconduct was in some way designed to prevent plaintiffs from meeting the filing deadline, or that the injury was inherently unknowable. Again, while the Court is sympathetic to plaintiffs' allegations of poor living and working conditions, as well as plaintiffs' allegation that they did not receive the wages they were entitled to, the Court's role is not to allow for equitable tolling based on its sympathies. Plaintiffs have a burden, and plaintiffs have failed to meet that burden.
In sum, the Court was not presented with any evidence of wrongful conduct on the part of the United States government that would result in concealing the statute of limitations; indeed, the Court is not aware of any evidence of deception by the United States government. Moreover, no evidence has been presented to the Court to establish that the injuries alleged were inherently unknowable. To the contrary, counsel has represented to the Court that there were many individuals that did know of their injuries and sought relief. In fact, numerous named and potential plaintiffs have already been dismissed from this lawsuit based on their assertion that they knew about the savings fund deductions. The Court is unable to conclude that these three plaintiffs were in a remarkably different position such that they should not have known of their injuries. Accordingly, the Court concludes that while the testimony of these three plaintiffs is not entirely clear, what is clear is that each of the three plaintiffs either knew of the savings fund deductions or should have known of the deductions within the six-year statute of limitations period and thus the statute of limitations has not tolled.
Plaintiffs again argue that because there was a fiduciary relationship between the United States and plaintiffs, the principles of equitable tolling should be more liberally applied. However, the fiduciary relationships identified in the cases cited by plaintiffs are nothing like the alleged fiduciary relationship in this case. As the Court explained in detail in its August 23, 2002 order in Cruz v. United States , slip op. at 21-24, and reiterated in the April 14, 2004 order in this case, slip op. at 16, the imposition of a fiduciary duty in this case is not supported by either an explicit statement of governmental intent or a unique history of a trust-like relations. Accordingly, the United States does not owe plaintiffs a fiduciary duty of the type alleged by plaintiffs. The plaintiffs' duty to discover their cause of action against the United States is not "lessened, " and will be adjudged under the basic law of equitable tolling. Moreover, even were this Court to more liberally apply the principles of equitable tolling, plaintiffs still would not meet that lessened standard.
II. Alternative Analysis
Plaintiffs argue that the Court should not use the standard from Martinez for its equitable tolling analysis. Instead, plaintiffs argued at oral argument that the Court should evaluate whether plaintiffs knew or should have known of the claim. However, plaintiffs cite no support for this standard. As explained above, a cause of action generally accrues when "the plaintiff knows, or in the exercise of reasonable diligence should know, of both the injury and its cause ." Alvarez-Machain , 107 F.3d at 700 (emphasis added). The question is not whether each plaintiff knew or should have know that he had a cause of action or claim , i.e. , that he could bring a lawsuit; rather, the question is whether each plaintiff knew or should have known of the injury and its cause . Were the Court to evaluate the equitable tolling analysis under the general standard of whether plaintiffs knew, or in the exercise of reasonable diligence should have known, of both the injury and its cause, plaintiffs still would not have met their burden of establishing equitable tolling. For similar reasons as explained above, in the exercise of reasonable diligence, plaintiffs should have known of both the injury and its cause. Many of the other braceros knew of the injury, its cause, and sought recovery. Other braceros knew of the injury and its cause, and did not seek any recovery. Had plaintiffs questioned employers, co-workers, or others, or had plaintiffs read their contracts, or otherwise exercised reasonable diligence, plaintiffs would have known of the injury and its cause.
Moreover, even if this Court were to evaluate the issue of equitable tolling on a purely equitable basis, i.e. , weighing the equities presented by both parties and looking at the totality of the circumstances, see Alvarez-Machain , 107 F.3d at 701, the Court would nonetheless reach the same conclusion. That is, while it appears that these plaintiffs may not have known about the savings fund program in particular, and while these plaintiffs may not have been aware until the attorneys in this case informed them that they had a potential cause of action, there is nothing in the record to support the assertion that through reasonable efforts they could not have known. The most compelling support for the argument that they could have known is the fact that many of the braceros did know.
Additionally, in a purely equitable analysis, the Court would also look at the equities with respect to the United States and conclude that the United States would be severely prejudiced by allowing this claim to go forward more than fifty years after the events have transpired. See Baldwin County Welcome Center , 466 U.S. at 152 (recognizing that prejudice is a factor in an equitable tolling analysis). For the following reasons, the Court concludes it would be inequitable to allow this case to proceed under the circumstances presented: (1) neither plaintiffs nor defendant have been able to produce the contract signed by any of these plaintiffs or any other record, such as bank or payroll statements, to verify the contract claims and the amounts; (2) plaintiffs have asserted that they have absolutely no documentation of the contracts; (3) the depositions of plaintiffs clearly show that there is a great deal of confusion about what transpired; (4) defendant does not have witnesses to counter any assertions made by plaintiffs because witnesses have died and memories have faded, and evidence has been destroyed or disappeared; and, (5) more generally, there seems to be little substantive evidence about what transpired with respect to these individual braceros. Overall, the United States would be unfairly prejudiced by allowing these claims to proceed. Thus, having weighed the equities under the totality of the circumstances, the Court concludes that equitable tolling is inappropriate in this situation.
CONCLUSION
As this Court has stated on numerous occasions, the Court does not doubt that many braceros never received savings fund withholdings to which they were entitled, nor does the Court doubt that many of the braceros who were brought to the United States were treated unfairly. However, the Supreme Court has clearly stated: "Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center , 466 U.S. at 152. While this Court's sympathies to the braceros situation are not merely vague, but are profound, just as a court's power to correct injustice is derived from the law, a court's power is circumscribed by the law as well.
For the foregoing reasons, the Court concludes that the six-year limitations period on plaintiffs' Tucker Act claim has not tolled; thus, plaintiffs are barred by the statute of limitations from bringing this claim. Accordingly, defendant's motion to dismiss is hereby GRANTED.
IT IS SO ORDERED.