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Full-text: February 25 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Feb 25 2002 Nancy Mayer Whittington, Clerk U.S. District Court




 

No. 1:01-CV-02629 (RMU)

 )
Olivier Bancoult, et al.,)
Plaintiffs,)
)
v.)
)
Robert S. Mcnamara, et al.,)
Defendants.)
 )

Defendant United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

{p.1}

Introduction

The plaintiffs seek a preliminary injunction with the goal of immediately opening up the Chagos Archipelago (including, on an unspecified “limited commercial basis,” the airstrip on Diego Garcia now used exclusively in support of United States’ and British operations) to as many as 4,466 Chagossian men, women, and children. The United States Navy Support Facility on Diego Garcia, the largest of the islands in the Chagos Archipelago, supports deployed forces in important military endeavors such as Operation Desert Shield/Desert Storm and Operation Enduring Freedom. Its secure operations are of critical importance to the defense of the United States’ interests both at home and abroad. The injunction plaintiffs seek would alter access to an area of important military significance that has been subject to British sovereignty continuously since 1814. Plaintiffs request this injunction against the United States notwithstanding that they are British Dependent Territory Citizens seeking access to the British Indian Ocean Territory (BIOT), which Britain controls.

Plaintiffs are not entitled to entry of a preliminary injunction against the United States or its officers, employees or agents. First, the motion should be denied because the injunction sought is a mandatory injunction that would alter the status quo as it has existed for the last thirty years. Plaintiffs cannot meet the exceptional showing required for a mandatory injunction to issue. Additionally, plaintiffs lack standing to seek an injunction because they cannot demonstrate a causal link between the harm they complain of and the federal defendants’ actions. Nor would issuance of the injunction redress their claimed harms because it is Britain, not the United States, who controls access to the BIOT. Moreover, plaintiffs have failed to satisfy the {p.2} four criteria for a preliminary injunction. They cannot succeed on the merits, because, inter alia, this Court lacks subject matter jurisdiction under any statute, and their claims present a nonjusticiable political question. They offer no proof that they will suffer irreparable harm. In contrast, the United States’ and the American Public’s interest in the continued security of its facility at Diego Garcia counsels against ordering the intrusion sought. Finally, plaintiffs have failed to comply with Local Civil Rule 7.1(m), which is a separate ground for denial of their motion.

II.
Statement of Facts

The United States Navy Support Facility on Diego Garcia supports deployed forces in important military endeavors such as Operation Desert Shield/Desert Storm and Operation Enduring Freedom. Declaration of Captain Michael C. Lucarelli, United States Navy, attached hereto at Tab A (“Lucarelli Dec.”) ¶ 12. 1  The Facility “plays host to 23 tenant commands and personnel from the U.S. Navy, Air Force, Army and Marine Corps.” Id.

Diego Garcia, though only 10.5 square miles in size, is the largest of 52 islands that form the Chagos Archipelago and the British Indian Ocean Territory (“BIOT”). Id. at ¶ 2. As explained {p.3} in a Queens {sic: Queen’s} Bench decision in an action that plaintiffs filed against the British Government in their capacity as British Dependent Territory Citizens of the British Indian Ocean Territory (BIOT):

“The Chagos Archipelago is in the middle of the Indian Ocean. Its islands and Mauritius were ceded by France to Great Britain in 1814. From that date until 1965 the archipelago was governed as part of the British Colony of Mauritius.... * * * In the 1960s by agreement between the governments of the United Kingdom and the United States of America it was resolved that there be established a major American military base upon the chief island of the Archipelago, Diego Garcia. There is no doubt but that the defence facility which the base provides is of the highest importance. In a letter of 21 June 2000 from the U.S. Department of State it is described as “an all but indispensable platform” for the fulfilment of defence and security responsibilities in the Arabian Gulf, the Middle East, South Asia and East Africa. In order to facilitate the establishment of the base, the archipelago was first divided from Mauritius and constituted (together with certain other islands) as a separate colony to be known as the “British Indian Ocean Territory” (“BIOT”). That was done by the British Indian Ocean Territory Order (SI 1965/1920) (“the BIOT Order”). Then in 1971 the whole of the Ilois population of BIOT (and other civilians living there) were compulsorily removed to Mauritius. Their removal was effected under a measure called the Immigration Ordinance (“the Ordinance”). The Ordinance was made by the Commissioner for BIOT. ...”

Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and Another, Queens {sic: Queen’s} Bench Division, 2001 Q.B. 1067, 2000 WL 1629583, at pp. 1075-76, Copy attached hereto at Tab B.

The BIOT was made available to satisfy the defense needs of both the United States and Britain pursuant to an agreement between the two sovereigns effected by an exchange of notes known as the “BIOT Agreement.” Lucarelli Dec. at ¶ 4. (A copy of the 1966 agreement together with subsequent amendments is attached to the Lucarelli Declaration.) 2  Pursuant to the BIOT {p.4} Agreement, the United States’ military presence on Diego Garcia commenced in 1973 as a mission to provide communications and support ships and aircraft of both the United States and Britain. Id. at ¶ 5.

The BIOT Agreement provides explicitly that British authorities exercise jurisdiction over all persons, including members of the United States Forces, regarding Territorial laws, and that United States military forces exercise no jurisdiction over any persons on Diego Garcia (or elsewhere in the BIOT) who are not members of the United States military. Id. at ¶¶ 6-7. All persons entering or leaving Diego Garcia, including United States military personnel, are subject to British Customs and Immigration controls. Id. at ¶¶ 8-11. Britain also controls access to the territorial seas of the BIOT. Id. at ¶ 11. British officials turn away from Diego Garcia non-United States or U.K. flagged vessels as a matter of course, and restrict persons on authorized vessels who do not have official approved business from disembarking. Id. The British strictly control access to Diego Garcia. Id. at ¶ 10.

Security concerns are paramount on Diego Garcia, as Captain Lucarelli’s declaration demonstrates:

“First, operational security (OPSEC) must be maintained in order to ensure that secure information is not disclosed to known or potential adversaries. * * * Diligent background checks are conducted to ensure that new employees will not pose a hazard to the personnel and assets onboard and the contractor population is very tight-knit community, giving us great confidence in their dedication and {p.5} loyalty to our shared cause. * * * [I]t is imperative that the operating waters, runways and individual worksites be secure from internal and external threat. * * * Although I cannot discuss specific elements or measures in place due to security safeguards, various forces and instruments are stationed on or around Diego Garcia by the U.K. to maintain their sovereign interest and by U.S. forces to ensure that this physical integrity is always maintained.” [Lucarelli Dec. ¶ 12.]

The Navy’s activities are spread throughout the island, which makes any attempt to cordon off the Navy’s operations and allow access to other parts of the island impracticable:

“Due to the unique nature of the components of the mission carried out by the various commands spread throughout the island, comparison with notions of a traditional military “base” is not appropriate as there is and can be no fenceline to delineate the critical mission and protect the personnel and assets located onboard. Many constraints are vital to ensure the adequate safety of personnel that work and live on Diego Garcia. Our population resides in one sector of the island that best protects them from exposure hazards inherent to antennae operations and other potential harms that cannot be specifically addressed due to security concerns. From an operational standpoint, any re-population of other areas of Diego Garcia would either cripple vital military operations of the United States and United Kingdom, or unnecessarily hazard the health and welfare of such an introduced population.”

Id. at ¶ 13. Similarly, control of access to islands of the Chagos Archipelago is instrumental to maintaining security: “[T]here would be detrimental impacts upon our operations if another population not associated with our common mission, and not subject to our screens and safety provisions, were to sit on our very doorstep.” Id. at ¶ 14.

The United States contracts for a wide variety of support services under what is known as a “Base Operating Support Contract” which is currently with “DG-21, a Joint Venture consisting of SKE Support Services, Inc., managing partner; Day and Zimmermann, Inc., and WS Atkins, Ltd.” Id. at ¶ 15. In turn, DG-21 subcontracts with De Chazal Du Mee (“DCCM”) which directly hires contract workers throughout the region. Id. The BIOT Agreement specifies preferences for hiring persons from Mauritius and Seychelles. Id. at ¶¶ 16-17. The contract with {p.6} DG-21 reflects the hiring preferences of the BIOT Agreement, and does not require or authorize the exclusion of Chagossian people from contract employment. Id. at ¶¶ 17-20. Captain Lucarelli expressly denies any knowledge of Chagossian people being excluded from consideration for employment under the subcontract. Id. at ¶¶ 18-20.

In an application for judicial review made on March 3, 1999, the lead plaintiff in the instant case, Olivier Bancoult, in his capacity as a British Dependent Territory Citizen, challenged the validity of the British Ordinance under which Bancoult and other Chagossians were removed from the BIOT and prevented from returning. Regina (Bancoult), supra at 1070. The decision that ensued held that the Order violated British law. Id. at 1103-04. The decision paved the way for the plaintiffs to seek further redress from their government, Britain.

III.
Argument

A.  The court lacks subject matter jurisdiction because there is no applicable waiver of sovereign immunity

Sovereign immunity is a fundamental principle in our legal system that bars any suit against the United States without its explicit consent, the terms of which define a court’s jurisdiction to entertain the suit. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Absent a “clear relinquishment” of that immunity, a court has no subject matter jurisdiction. Dalehite v. United States, 346 U.S. 15, 30-31 (1953). “[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman, 453 U.S. at 161 (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)). “A {p.7} waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, see e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37 (1992), and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990)). See also Floyd v. District of Columbia {38kb.html/txt}, 129 F.3d 152, 156 (D.C. Cir. 1997) (“waivers of sovereign immunity must be unequivocally expressed in statutory text; we cannot imply a waiver of sovereign immunity”). The Court cannot grant the relief sought here absent a specific waiver of sovereign immunity. 3 

Here, plaintiffs allege jurisdiction under three statutes: 28 U.S.C. § 1331 (Federal Question), § 1350 (Alien Tort Claims Act) and § 1367 (supplemental jurisdiction statute). None of these statutes contains the requisite explicit and unequivocal language manifesting a congressional intent to waive sovereign immunity. Section 1331 of Title 28 provides, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” This section, alone, however, does not provide the waiver of sovereign immunity necessary to maintain a suit against the United States; there must also be a {p.8} statute waiving sovereign immunity. See First Virginia Bank v. Randolph {22kb.html/txt}, 110 F.3d 75, 78 (D.C. Cir. 1997), cert. denied, 522 U.S. 1075 (1998). But see Clopton v. Dept. of the Navy, 1996 WL 680189 (D.C. Cir. 1996) (per curiam). It is also well-established that the Alien Tort Claims Act, 28 U.S.C. § 1350, does not waive the United States’ sovereign immunity. See e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985); Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir.) (per curiam), cert. denied, 506 U.S. 908 (1992). And, the supplemental jurisdiction statute, 28 U.S.C. § 1367, does not waive sovereign immunity here because, by its terms, neither § 1331 nor § 1350 (for the reasons addressed above) can provide a jurisdictional platform for § 1367 jurisdiction to rest upon.

“Section 1367(a), however, deals only with the federal courts’ power to exercise subject matter jurisdiction over certain claims and does not operate as a waiver of the United States’ sovereign immunity. Sovereign immunity and subject matter jurisdiction are distinct doctrines. Section 1367(a) essentially codified the common law doctrine of pendant jurisdiction; Baker v. Farmers Elec. Co-Op. Inc., 34 F.3d 274 (5th Cir. 1994); which allows litigants in federal court to join state claims with their federal claims where the claims are so related that they “form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). As we have previously held, the doctrine of pendant jurisdiction cannot be used to waive the United States’ sovereign immunity unless Congress specifically allows it. Ware. 626 F.2d at 1286 (quoting Sanborn v. United States, 453 F.Supp. 651, 655 & n.5 (E.D. Cal. 1977)).”

[Wilkerson v. United States {33kb.html/txt}, 67 F.3d 112, 119 (5th Cir. 1995)].

Plaintiffs expressly disclaim reliance on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, which provides a limited waiver of sovereign immunity with respect to torts committed by federal employees in the scope of their office or employment. See Complaint, ¶ 5. Moreover, the plaintiffs acknowledge that they have not exhausted the FTCA administrative {p.9} claim requirements, 4  see 28 U.S.C. § 2675(a), a jurisdictional prerequisite to instituting suit under the FTCA. See McNeil v. United States, 508 U.S. 106 (1993).

Instead of relying on the FTCA, the plaintiffs’ suit against the United States appears to rest on two broad postulates: First, that “the acts complained of are violations of peremptory norms of international law as to which no person or state may claim immunity;” and second, that “under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-11 (1988), the United States has waived the immunity of foreign sovereigns allowing them to be haled into courts of the United States, and principles of comity demand the waiver of sovereign immunity of the United States under similar circumstances.” Complaint ¶ 6.

That no state may claim immunity from suit for a violation of peremptory norms of international law is hardly apparent. See e.g., Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995). In any event, the plaintiffs’ first proposition is unsound because it ignores the well-settled case law recognizing that it is for Congress to decide when the United States should be subject to suit, and plaintiffs have cited no statute which allows suits alleging violations of peremptory norms of international law. See Lane, 518 U.S. at 192 (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text.” (emphasis added). As discussed above, none of the statutes the plaintiffs cite contains a waiver of sovereign immunity. In the same vein, the {p.10} plaintiffs’ second postulate – that because under the Foreign Sovereign Immunities Act (“FSIA”) foreign sovereigns can be sued in United States courts under limited circumstances, comity and equity demand a similar waiver of sovereign immunity from the United States, is unavailing: Whatever inequities the plaintiffs might see in the claimed different scope of sovereign immunity of the United States on one hand, and foreign sovereigns on the other, is for Congress alone to remedy. See e.g., Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (no waiver of the United States sovereign immunity absent Congress’ explicit statutory consent to be sued.)

Because no clear and unequivocal waiver of the United States’ sovereign immunity authorizes the plaintiffs’ suit in the circumstances presented here, the Court lacks subject matter jurisdiction to issue injunctive relief against the United States, its agencies or officials. Id.

B.  Plaintiffs lack standing to request the court to enjoin the United States “[f]rom [e]xcluding the [p]laintiffs from the [C]hagos [a]rchipelago”

To establish standing for a preliminary injunction, a plaintiff must demonstrate first, that it has suffered an “injury in fact,” second that there is a “causal connection between the injury and the conduct complained of;” and third that “its injury would be redressed by a ruling in its favor.” See Mylan Pharmaceuticals, Inc. v. Shalala {120kb.pdf}, 81 F.Supp.2d 30, 45 (D.D.C. 2000), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Because it is not within the United States’ power to grant or deny access to the Archipelago, plaintiffs cannot meet the second and third elements of standing.

The plaintiffs seek to enjoin the United States from “excluding the Plaintiffs from the Chagos Archipelago....” Plaintiffs’ Proposed Order For Preliminary Injunction. Plaintiffs’ request ignores that issuing the injunction would be an exercise in futility, because it is Britain, {p.11} not the United States, that controls both physical and legal access to the Archipelago. The plaintiffs are British Dependent Territory Citizens. Regina (Bancoult) at pg. 1104 (“These people are subjects of the Crown, in right of their British nationality as belongers in the Chagos Archipelago.”). They were originally removed from and thereafter excluded from the Archipelago pursuant to a British law.

“[I]n 1971 the whole of the Ilois population of BIOT (and other civilians living there) were compulsorily removed to Mauritius. Their removal was effected under a measure called the Immigration Ordinance (“the Ordinance”). The Ordinance was made by the Commissioner for BIOT (“the Commissioner”). ... The principal issue in th[is] case is whether there was any lawful power to remove the Ilois from BIOT, in the manner in which that was done.”

Regina (Bancoult) at 1075. 5  Indeed, in recognition that their fate is in the hands of the British government, plaintiffs sued Britain in the above-cited proceeding and in November of 2000 achieved a ruling from the Queen’s Bench that the order banishing them was contrary to British law. Id. at 1103-04.

The agreement between Britain and the United States establishing the base on Diego Garcia explicitly states that the United States may not exercise authority over British citizens in the BIOT:

“The foregoing provisions of this paragraph shall not imply any right for the military authorities of the United States to exercise jurisdiction over persons who belong to, or are ordinarily resident in, the Territory, or who are British subjects or {p.12} Commonwealth citizens or British protected persons, unless they are military members of the United States Forces.”

BIOT Agreement, at pg 5.

In addition to exercising legal control over access to the Archipelago, the British exercise control in fact. It is the British who patrol the waters of the Archipelago and who would be physically positioned to permit or deny the plaintiffs access to any of the individual islands of the Archipelago. Lucarelli Dec. ¶¶ 9-11. Should the plaintiffs desire to enter the Island of Diego Garcia, they would have to pass through British Customs. Id.

Hence, it is the British, not the United States, who have the power, both legal and actual, to admit or exclude the plaintiffs from the Archipelago. Accordingly, the plaintiffs lack standing for this injunctive relief because the injury they complain of – namely the harms they contend they suffer by being excluded – will not be addressed by entry of the sought after injunction. See Pharmaceutical Research and Manufacturers of America v. United States, 135 F.Supp.2d 1, 8 (D.D.C. 2001), rev’d on other grounds {35kb.html/txt}, 251 F.3d 219 (D.C. Cir. 2001).

Nor can plaintiffs argue that the British deny them access to the islands to fulfill their diplomatic agreements with the United States. Assuming arguendo, that the British exclude the plaintiffs only because the United States has, through diplomatic channels, requested them to do so, 6  then the only injunction against the United States that could possibly have any effect would {p.13} be one ordering the Executive Branch to attempt to persuade the British through diplomatic channels to change their behavior. This the Court cannot do without violating the Separation Of Powers Provisions of the Constitution, as the conduct of foreign policy is unquestionably committed to the Executive branch. U.S. Const. Art. II, § 2. See Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). And even this would not ensure that the British would provide plaintiffs with access to the Archipelago. Britain is a sovereign nation, and need not comply with such a “request.”

Hence, plaintiffs cannot demonstrate that their injury – exclusion – “‘fairly can be traced to the challenged action’ and ‘is fairly likely to be redressed by a favorable decision.’” Pharmaceutical Research and Manufacturers of America v. United States, 135 F.Supp.2d 1, 8 (D.C.), rev’d on other grounds {35kb.html/txt}, 251 F.3d 219 (D.C. Cir. 2001), quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); citing MD Pharmaceutical, Inc., v. DEA {74kb.html/txt}, 133 F.3d 8, 11 (D.C. Cir. 1998). To establish standing plaintiff must prove, and not merely guess as to what the effect would be of the injunction they seek.

“The plaintiff will be found to lack standing if the court must accept speculative inferences and assumptions in order to connect the alleged injury with the challenged action. See National Maritime Union v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C. Cir. 1987). Lastly, to prove that the alleged injury is likely to be redressed by a favorable decision, the plaintiff must show that a favorable decision would likely afford its member relief from the injury.” {p.14}

Pharmaceutical Research and Manufacturers of America v. United States, 135 F.Supp.2d at 8-9. Because plaintiffs cannot demonstrate that a preliminary injunction would afford them the relief they seek, they lack standing, and the preliminary injunction must be denied for that reason.

C.  Plaintiffs cannot meet the four criteria for a preliminary injunction, and they cannot satisfy the additional hurdle for the mandatory injunction they seek

The Supreme Court has held that “[t]he purpose of a preliminary injunction is merely to preserve the relative position of the parties until a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Here, plaintiffs seek not to preserve the status quo, i.e. the exclusion of the plaintiffs from the Archipelago and employment opportunities, which has allegedly existed since they were removed by the British almost thirty years ago. Rather, plaintiffs seek to radically alter the status quo by ordering that plaintiffs immediately be restored to the Archipelago. Hence, plaintiffs seek a mandatory injunction and must meet a higher standard. See Leboeuf, Lamb, Greene & Macrae, LLP v. Abraham, 180 F.Supp.2d 65, 70 (D.D.C. 2001):

“In this case, LeBoeuf faces an additional hurdle because it seeks a preliminary injunction that would alter the status quo: a mandatory injunction as opposed to a prohibitive injunction. See Mylan Pharms., Inc. v. Henney {120kb.pdf}, 94 F.Supp.2d 30, 58 (D.D.C. 2000) (Urbina, J.) [judgment vacated, appeal dismissed on other grounds, Pharmachemie B. V. v. Barr Labs. {34kb.html/txt}, 276 F.3d 627 (D.C. Cir. 2002)]. When a party seeks an injunction to reverse policies that are already in place, “the moving party must meet a higher standard than in the ordinary case by showing ‘clearly’ that he or she is entitled to relief or that ‘extreme or very serious damage’ will result from the denial of the injunction.” See Columbia Hosp. for Women Found. v. Bank of Tokyo-Mitsubishi, Ltd., 15 F.Supp.2d 1, 4 (D.D.C. 1997) (citation omitted), aff’d, 159 F.3d 636 (D.C. Cir 1998) (table, text in Westlaw); see also Alaska Excursion Cruises, Inc. v. United States, 595 F.Supp. 14, 18 (D.C.C. 1984) (attempt to alter status quo, rather than preserve it, must be supported by showing that “the facts and law clearly support” such a change.)” {p.15}

See also Veitch v. Danzig, 135 F.Supp.2d 32, 35 (D.D.C. 2001) (“Courts have held that ‘where an injunction is mandatory – that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act, ... – the moving party must meet a higher standard than in the ordinary case by showing ‘clearly’ that he or she is entitled to relief or that ‘extreme or very serious damage’ will result from a denial injunction.’” quoting Phillip v. Fairfield University {16kb.html/txt, 19kb.html/txt, 24 kb rtf}, 118 F.3d 131,133 (2d Cir. 1997); citing Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (“The power to issue an injunction, especially a mandatory one, should be ‘sparingly exercised’.”).

“‘[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Leboeuf, 180 F.Supp.2d at 71, quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). This Court has recognized that a preliminary injunction may issue only when the movant has demonstrated:

“(1) there is a substantial likelihood plaintiff will succeed on the merits; (2) plaintiff will be irreparably injured if an injunction is not granted; (3) an injunction will not substantially injure the other party; and (4) the public interest will be furthered by an injunction.”

Leboeuf, 180 F.Supp.2d at 70, citing Davenport v. Int’l Bhd. of Teamsters {52kb.html/txt}, 166 F.3d 356, 361 (D.C. Cir. 1999). Plaintiffs have failed to demonstrate entitlement to a preliminary injunction under the four criteria recognized by the courts.

1.  Plaintiffs cannot succeed on the merits

Plaintiffs have not demonstrated that they have any likelihood of success on the merits. To the contrary, as previously discussed, the Court lacks subject matter jurisdiction to hear this action for several reasons.

First, as discussed above, subject matter jurisdiction is lacking {p.16} because there has been no waiver of sovereign immunity.

Second, as discussed above, plaintiffs lack standing to request the injunctive relief they seek. See Barton v. District of Columbia {52kb.pdf}, 131 F.Supp.2d 236, 243 n. 6 (D.D.C. 2001), citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998) (to establish a likelihood of success on the merits plaintiffs must establish standing).

Third, the Court lacks subject matter jurisdiction because, inter alia, the action involves a non-justiciable political question. Nor have they presented evidence showing they are likely to prevail on the merits.

i.  This suit is barred by the political question doctrine

Because this suit challenges decisions Constitutionally committed to the Political branches of government it is barred by the political question doctrine. Antolok v. United States, 873 F.2d 369, 379 (D.C. Cir. 1989). The Supreme Court has characterized:

“[t]he political question doctrine as exclud[ing] from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally under equipped to formulate national policies or develop standards for matters not legal in nature.” United States ex rel. Joseph v. Cannon,” [642 F.2d 1373, 1379 (D.C. Cir. 1981) (footnote omitted), cert. denied, 455 U.S. 999 (1982).]

Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986). Here, plaintiffs, subjects of the British Crown, seek an injunction against the United States government relating to matters which are governed by formal agreements negotiated between the governments of the United Kingdom and the United States. The decisions to establish a military base on Diego Garcia, to negotiate with the British for access to that base, and the details of the matters included in those negotiations, including access to Diego Garcia and neighboring islands, are political {p.17} questions Constitutionally assigned to the Political branches. Accordingly, the political question doctrine is an independent ground that bars this suit.

To determine whether the political question doctrine is applicable, the courts examine six formulations identified by the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), any one of which may identify the controversy as a non-justiciable political question. These formulations are:

“[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Id. at 217. All of the Baker v. Carr formulations are met here, but the Motion for Preliminary Injunction can be resolved on the first. 7  {p.18}

The Constitution assigns authority over foreign affairs to the Political branches and makes the President the Commander in Chief. U.S. Const. Art. II, § 2. “The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” Oetjen v. Central Leather Co., 246 U.S. 297, 302, (1918) (citations omitted.); Antolok, 873 F.2d at 379-80.

The nub of plaintiffs’ position is that the United States violated the rights of Chagossians when it negotiated the BIOT Agreement with Great Britain which excluded from them from the Archipelago. But the Executive branch is solely responsible for such negotiations. With regard to the BIOT Agreement, the Executive Branch recognized the sovereignty of Great Britain over the Archipelago. Negotiations with foreign nations and recognition of sovereignty are not subject to judicial inquiry. Oetjen, supra.

Questions regarding the sovereignty of foreign nations and their capacity to enter international agreements are not within the competence of domestic courts. These questions are committed to the Executive. In Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938), the Supreme Court stated:

“What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and it is to be determined by the political department of the {p.19} government. Objections to its determination as well as to the underlying policy are to be addressed to it and not to the courts. Its action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, which are bound to accept that determination, although they are free to draw for themselves its legal consequences in litigation spending before them.”

Id. at 137, 138; accord United States v. Pink, 315 U.S. 203, 230 (1942) (“We would usurp the executive function if we held that that decision was not final and conclusive in the courts.”); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (“It has been specifically decided that ‘who is the sovereign, de jure or de facto, of a territory’ is not a judicial, but is a political question....”).

In United States v. Belmont, 301 U.S. 324 (1937), the Court explained the extent to which such Executive Branch decisions are binding on the Judiciary. In Belmont the Soviet Government appropriated a Soviet corporation which held funds in the United States. The Soviet Government transferred those funds to the United States as part of the agreement normalizing relations between the two governments. The United States brought suit against the banker with which the Russian corporation had entrusted the funds. The Court held that the acts of the Soviet Government at issue could not be challenged under New York public policy arguments or the Constitution, and that the monies in question were vested in the Soviet Government which properly transferred them to the United States. In reaching this conclusion the Court restated its holding in Oetjen v. Central Leather Co., supra, which it summarized.

“[T]he conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this political power was not subject to judicial inquiry or decision: that who is the sovereign of a territory is not a judicial question, but one the {p.20} determination of which by the political departments conclusively binds the courts; and that recognition by these departments is retroactive and validates all actions and conduct of the government so recognized from the commencement of its existence.” [301 U.S. at 328] [Emphasis added.]

In this case, the political departments have recognized and treated the Government of Great Britain as a sovereign with full capacity to negotiate the BIOT Agreement. The sovereignty of that government to enter the Agreement, therefore, is “not subject to judicial inquiry or decision....” This point is not affected by subsequent developments internal to Britain, including the Queen’s Bench decision which recognized certain rights of Chagossians under British law. Similarly, decisions of the military importance of the Diego Garcia base and the means of securing it, provisioning it, and using it are matters within the competence of the Political branches. They are also protected from judicial inquiry by the political question doctrine. E.g. Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34 (2d Cir. 1985) (deployment of cruise missiles in Britain).

2.  Plaintiffs have not demonstrated that they will suffer irreparable harm in the absence of a preliminary injunction

In Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 672 (D.C. Cir.), aff’d in part, remanded in part, 770 F.2d 1144 (D.C. Cir. 1985), the D.C. Circuit issued an opinion “for the guidance of the bar” as to what a plaintiff must do to establish irreparable harm of the sort that will support issuance of a preliminary injunction. The court stated:

“First, the injury must be both certain and great; it must be actual and not theoretical. Injunctive relief “will not be granted against something merely feared as liable to occur at some indefinite time,” Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 291, 75 L.Ed. 602 (1931); the party seeking injunctive relief must show that “[t]he injury complained of [is] of such imminence that there is a ‘clear and present’ need for equitable relief to prevent {p.21} irreparable harm.” Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 307 (D.D.C.), aff’d, 548 F.2d 977 (D.C. Cir. 1976) (citations and internal quotations omitted). It is also well settled that economic loss does not, in and of itself, constitute irreparable harm.

* * *

Implicit in each of these principles is the further requirement that the movant substantiate the claim that irreparable injury is “likely” to occur. See Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d at 843 n. 3. Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur. The movant must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future. Further, the movant must show that the alleged harm will directly result from the action which the movant seeks to enjoin.

* * *

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” [758 F.2d at 674-75 (Emphasis by court.).]

The harms plaintiffs assert they “will suffer” absent issuance of a “preliminary injunction now as opposed to an injunction after a trial on the merits” (Pl. Br. at 7) do not meet this standard. Plaintiffs summarize their position, asserting,

“Without a preliminary injunction ... Defendants’ acts will cause Plaintiffs to suffer significant irreparable harm in the form of complete loss of culture, exclusion and discrimination based on race, ethnicity, and national origin, loss of employment opportunities, severe emotional distress and trauma, loss of self-esteem, and embarrassment.” [Pl.Br. at 8.]

This assertion is remarkable for the breadth of its illogic, and its complete lack of evidentiary support.

It is unreasonable to believe that the Chagossians will suffer a “complete loss of culture, ... severe emotional distress and trauma, loss of self-esteem, and embarrassment” if plaintiffs do {p.22} not receive a preliminary injunction now. The assertion that “younger Chagossians ... stand to suffer the loss of never visiting the Chagos islands ... [and] [t]he loss of this opportunity will complete the ruin and decimation of the Chagossian culture and society,” (Pl. Br. at 7) is plainly mistaken hyperbole. There is no realistic reason to believe that if plaintiffs were to prevail in litigation, even several years’ delay in final resolution of the case would have much effect on the ability of young Chagossians to rekindle interest in their culture and society. There is no showing of imminence as required for a preliminary injunction. Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 307 (D.C.), aff’d, 548 F.2d 977 (D.C. Cir. 1976).

“[T]he allegations made by petitioners are so speculative and hypothetical that it would be difficult to conclude that irreparable injury would occur even if the allegations were supported by evidence.” Wisconsin Gas Co., 758 F.2d at 675. Here there is no evidence to support plaintiffs’ position. 8  None of the affidavits filed by plaintiffs speaks of a loss of culture or self-{p.23}esteem. 9  The fact that plaintiffs have not attempted to provide competent evidence is another reason to reject their assertion of irreparable harm. See also Wisconsin Gas Co., 758 F.2d at 675.

Moreover, none of the plaintiffs’ alleged harms requires imminent resolution. The Chagossians left Diego Garcia and nearby islands some thirty years ago. It is more than fifteen months since the Queen’s Bench decision was entered. Any urgency that exists today has existed for a number of years. “[T]his time lapse undermines any assertions that [plaintiff] will suffer irreparable harm if the Court does not grant preliminary injunctive relief.” Tenacre Foundation v. Immigration & Naturalization Service {22kb.html/txt}, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996) quoting the lower court’s opinion, 892 F.Supp. 289 (D. D.C. 1995), (plaintiff sought preliminary injunction eight months after receiving notice from INS). See also Mylan Pharmaceuticals, Inc. v. Shalala {120kb.pdf}, 81 F.Supp.2d 30, 43-44 (D.D.C. 2000) (eight month delay in bringing suit “militates against a finding of irreparable harm.”)

Nor is “loss of employment opportunities” (Pl.Br. at 8) an irreparable injury that supports a preliminary injunction here. See Veitch v. Danzig, 135 F.Supp.2d 32, 36 (D. D.C. 2001) (typical economic harm associated with unemployment does not constitute irreparable harm.) Citing Sampson v. Murray, 415 U.S. 61, 91-92 (1974). This is particularly true where plaintiffs {p.24} assert that this has been a practice for over thirty years. Assuming their assertions were true, 10  there would be no need for a preliminary injunction, as the harm complained of would be the same, ongoing loss of employment opportunities. In fact, however, hiring workers is an issue addressed in the BIOT Agreement. Lucarelli Dec. at ¶¶ 15-17. Moreover, the United States does not prohibit or discourage hiring of Chagossian workers. Id. at ¶¶ 18-20. The Court need not resolve any dispute as to whether Chagossians are excluded from consideration of employment now because such an injury is not imminent and would be redressable by money damages; accordingly, it is not irreparable harm for preliminary injunction purposes. As this Court stated in LeBouef, 180 F.Supp.2d at 71-72:

“To show irreparable harm, the movant must substantiate a claim that irreparable injury is “certain to occur in the near future, and that this harm could be prevented by the injunction.” Wisconsin Gas Co. v. Federal Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985). A loss that could be recovered by compensatory or other corrective relief is irreparable harm “only when the loss threatens the very existence of the movant’s business. See Id.”

See also Veitch v. Danzig, supra. {p.25}

3.  The interest to others (public interest) and the interests of the United States will be harmed if the preliminary injunction is granted

The present case is one in which the “public interest” and the interest of the party against whom the injunction would issue – the United States – are one in the same. The United States’ interest in this matter lies in seeing that the United States’ military installation on Diego Garcia remains secure and unhindered in the performance of its mission. See Lucarelli Dec. ¶¶ 12-14. The “public interest” that the court must consider is the interest of the United States and its citizens in national security. See National Resources Defense Council, Inc. v. Pena, 972 F.Supp. 9, 20 (D.D.C. 1997) (holding that “[t]he national security interest here must be paramount” over environmental concerns). In considering injunctive relief great weight is accorded national security interests in balancing the public interest.

“Courts have accorded great weight to considerations of national security when balancing the interests and equities of the parties. See e.g. Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 796, 798 (D.C. Cir. 1971) (because of “assertions of potential harm to national security and foreign policy – assertions which [the court] obviously cannot appraise – and given the meager state of the record before us, we are constrained to refuse an injunction.”). In a case similar to this one, the 7th Circuit credited the potential harm to the Navy and the national defense as being one of the most important factors to be weighed. Wisconsin v. Weinberger, 745 F.2d 412, 427 (7th Cir. 1984) (“injunction’s service to NEPA in preserving unbiased decision-making [on the remaining construction of a military project while the Navy completed a supplemental EIS] would be slight” and “[m]ore important... the district court’s failure to balance the weight of the alleged NEPA violation against the harm the injunction would cause the Navy and the country’s defense”); see also Concerned About Trident v. Rumsfeld, 555 F.2d 817, 831 (D.C. Cir. 1977).”

Id. See also Water Keeper Alliance v. U.S. Dept. of Defense {49kb.html/txt}, 271 F.3d 21, 34-35 (1st Cir. 2001) (National Defense need for Navy to continue training at Vieques outweighed environmental {p.26} concerns.) Here, the public interest has been determined by the Political branches of government to be the continued, undisrupted function of the Diego Garcia base in the defense of United States’ interests in that part of the world, and its contribution to homeland security.

In their British suit the court noted that the plaintiffs were removed from the Archipelago so that an effective and secure base could be built on Diego Garcia:

“It is beyond argument that the purposes of the BIOT Order and the Ordinance were to facilitate the use of Diego Garcia as a strategic military base and to restrict the use and occupation of that and other islands within the territory to the extent necessary to ensure the effectiveness and security of the base. Those purposes were, or could at least reasonably be described as, of great benefit to the United Kingdom and the western powers as a whole. The applicant acknowledges this.”

Regina (Bancoult), supra, at p.1006 {sic: 1106; ¶ 65}.

Yet in their Motion for Preliminary Injunction, plaintiffs do not even discuss the security implications of opening the Archipelago to all Chagossians. Indeed, plaintiffs fail to acknowledge the potential security threat or disruption to the operation of the base posed by the “immediate return to Chagos and limited commercial access to the airstrip on Diego Garcia”, Complaint ¶ 104, of thousands of persons. 11  Incredibly, plaintiffs’ discussion of “public interest” consists of a bare paragraph which states merely that preventing human rights violations and enforcing international law furthers some amorphous public interest. Pl. Br. at p.9. In light of the pivotal importance of the base to the United States’ security interests, both at home and abroad, the public interest in security is of paramount importance. See {p.27} National Resources Defense Council, Inc. v. Pena, supra; Water Keeper Alliance v. U.S. Dept. of Defense, supra.

* * *

In Wisconsin Gas the D.C. Circuit spoke to the problem of frivolous motions for preliminary injunctive relief:

“Petitioners have made allegations of irreparable injury which are speculative, unsubstantiated and of a nature which clearly does not warrant the issuance of a stay. The filing of these motions, therefore, has been an abuse of the judicial process and has wasted the time and resources of this court. We are issuing this opinion for the guidance of the bar because many essentially frivolous stay applications are being filed. Counsel know or may easily learn the requirements for a stay. Applications that do not even arguably meet those requirements, as the present ones do not, should not be filed.” [758 F.2d at 672].

Plaintiffs’ counsel are certainly familiar with the Wisconsin Gas opinion, as they cited it in their brief. See Pl. Br. at 6. Yet, they have ignored its plain, explicit lesson.

Plaintiffs’ Motion for Preliminary Injunction rests on a faulty jurisdictional basis, a legal analysis which glosses over key issues (e.g. standing, separation of powers) and evidentiary attachments which are technically deficient and do not even purport to substantiate plaintiffs’ speculative predictions of the “complete loss of [Chagossian] culture” and other imminent serious injuries. Plaintiffs have not come close to proving their case. In similar circumstances the Wisconsin Gas opinion concluded:

“Finally, the allegations made by petitioners are so speculative and hypothetical that it would be difficult to conclude that irreparable injury would occur even if the allegations were supported by evidence. The fact that petitioners have not attempted to provide {p.28} any substantiation is a clear abuse of this court’s time and resources.” [758 F.2d at 675.]

D.  The preliminary injunction should be denied for the additional reason that plaintiffs did not comply with local Rule 7.1(m)

Local Civil Rule 7.1(m) requires the following:

“Before filing any non-dispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement. A party shall include in its motion a statement that the required discussion occurred, and a statement as to whether the motion is opposed.”

Plaintiffs’ Motion for Preliminary injunction does not contain the required Rule 7.1(m) statements. Moreover, plaintiffs’ counsel did not contact counsel for the federal defendants to discuss their Motion for Preliminary Injunction before filing that motion.

Local Rule 7.1(m) has, as its objectives, inter alia, the streamlining of litigation and the advancement of the parties’ dialogue on an issue before its presentment to a United States District Court Judge for decision. E.g., Center for Auto Supply v. NHTSA, 93 F.Supp.2d 1, 12 (D.D.C. 2000), remanded on other grounds, 244 F.3d 144 (D.C. Cir. 2001). Failure to comply with Rule 7.1(m) constitutes a separate and independent reason to deny plaintiffs’ Motion for Preliminary Injunction: “had Plaintiff bothered to comply with the rule in the first place, it may have saved substantial time for the Court and the parties, especially given ... [inter alia], the fact that this matter is being handled on an expedited basis as per Plaintiff’s request”).

Plaintiffs’ counsel’s failure to consult on this motion is particularly disturbing in that Department of Justice attorneys had consulted with plaintiffs’ counsel to arrange a briefing {p.29} schedule for the United States’ and the Individual Federal Defendants’ anticipated Motion to Dismiss. After preliminary discussions, initiated by Department of Justice attorneys, of their intent to file a dispositive motion to dismiss that was likely to require extensive briefing by both sides, on February 12th Department of Justice attorneys faxed plaintiffs’ counsel a draft of the defendants’ “Unopposed Motion for Enlargement of Time and to Establish Schedule for Briefing,” and filed the unopposed motion the following day, on February 13th. The motion forthrightly states that the federal defendants’ motion to dismiss would raise “among other grounds, nonjusticiability of the claims, sovereign immunity, and absolute and qualified immunity from suit.”

Without warning, on the very next day, February 14th, (the Thursday before the three-day Presidents’ Day weekend), plaintiffs’ counsel served the instant Motion for Preliminary Injunction. There is no reason why this motion could not have been raised during the discussions to establish a cooperative briefing schedule to address some of the very same issues raised in the Motion for Preliminary Injunction. Yet plaintiffs’ counsel failed to mention that they were about to file this Motion for Preliminary Injunction. Such lack of candor serves no one’s interests, and should not be rewarded when the Local Rule mandates frank disclosure of the parties’ intentions. {p.30}

Conclusion

For the foregoing reasons, plaintiffs’ motion for preliminary injunction should be denied.

Respectfully submitted,

Robert D. McCallum, Jr.

Assistant Attorney General, Civil Division

Roscoe C. Howard, Jr.

United States Attorney

 

Signatures: Paul F. Figley, Elaine Marzetta Lacy

{Signature}

Paul F. Figley
(No.308247)
Deputy Director
Torts Branch, Civil Division


{Signature}

Elaine Marzetta Lacy
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 888
Washington, DC 20044
Ph: (202-616-4285)
Maryland Bar (No Bar #)

Attorney for United States of America

Dated: February 25, 2002

______________________

Certificate of Service

I hereby certify that on February 25, 2002, I served a true copy of the foregoing United States’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction, with Declarations, and attachments to the Lowry Declaration {sic: Lucarelli}, by first class mail, postage prepaid, addressed to the plaintiffs’ counsel as follows (The Opposition and declarations, but not the attachments to the declarations because of length, were also sent to Mr. Tigar by telecopier):

Michael E. Tigar, Esq.
1025 Connecticut Avenue, NW
Suite 1012
Washington, D.C. 20036

Signature: Elaine Marzetta Lacy

 

{Signature}

Elaine Marzetta Lacy

Footnotes

Each footnote appears entirely on the same page with its text reference, except where an embedded page reference marks a carryover, to the foot of the next page (n.2, n.6, n.7, n.8) CJHjr

 1  At the time this Opposition brief was filed, on Monday, February 25, an electronic version of Captain Lucarelli’s Declaration was attached. The original declaration with attachments will be filed as soon as it is received by undersigned counsel. The reason for delay in filing the original is as follows: Captain Lucarelli signed his declaration on Thursday, February 21st on the island of Diego Garcia. As there is no Federal Express service to Diego Garcia, on Friday morning, February 22, a JAG Officer on Diego Garcia hand-carried the original to a civilian pilot who was scheduled to depart Diego Garcia for Singapore Friday afternoon. The pilot coordinated with a pilot for Federal Express scheduled to depart Singapore Saturday, February 23, to send the document via Federal Express from Singapore for delivery to Washington, D.C. Barring unforseen {sic: unforeseen} delays in the flights, the original should arrive for filing by Tuesday or Wednesday, February 26 or 27.

 2  The Queen’s Bench Decision recognizes the importance of the Diego Garcia facility to not only the United States but to Great Britain and others as well: {p.4}

“It is beyond argument that the purposes of the BIOT Order and the Ordinance were to facilitate the use of Diego Garcia as a strategic military base and to restrict the use and occupation of that and the other islands within the territory to the extent necessary to ensure the effectiveness and security of the base. Those purposes were, or could at least reasonably be described as, of great benefit to the United Kingdom and the western powers as a whole. The applicant acknowledges this.”

[Regina (Bancoult), supra at 1106.]

 3  In Hawaii v. Gordon, 373 U.S. 57, 58 (1963), the Court stated:

“We have concluded that this is a suit against the United States and, absent its consent, cannot be maintained by the State. The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. E.g., Dugan v. Rank, 372 U.S. 609 (1963); Malone v. Bowdoin, 369 U.S. 643 (1962); Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949).”

In Hawaii v. Gordon injunctive relief was sought against the Director of the Bureau of the Budget.

 4  See Complaint, ¶ 5, “As such [FTCA] claims, and any claims for which Plaintiffs are required to exhaust administrative remedies prior to suit, Plaintiffs have made the appropriate administrative claims, and will amend this complaint when those are resolved.” The parties agree that plaintiffs have not exhausted their administrative remedies. While it is not relevant to the present motion, the United States does not agree that plaintiffs “have filed appropriate administrative claims.”

“ Unless the removal of the Ilois from the archipelago is shown to have been done according to law, the applicant in these proceedings must succeed, and ... it cannot be and is not suggested that any prudential considerations (such as the strategic importance of the military base) should stay the court’s hand.”

Judge Laws, Bancoult, [2001] Q.B. 1095, ¶36

 5  The Queens {sic: Queen’s} Bench decision is careful to note that “the political reasons for such removal were good reasons dictated by pressing considerations of military security,” id. at 1068 {the case headnote, not the court’s opinion}. The stated basis for the decision is that it was not within the legal authority of the Commissioner of the BIOT to make an order providing for the compulsory removal of the plaintiffs, thus vindicating the principle of British law that “fundamental or constitutional rights might not be abrogated by a subordinate instrument made pursuant to legislation cast in general terms, but only pursuant to a specific provision in an Act of Parliament.” Id. at 1067 {the case headnote, not the court’s opinion}; see also 1103-04.

 6  That the British perceived the depopulation of the Archipelago to be in their self-interest is evident from the Queens {sic: Queen’s} Bench decision, which states:

“It is beyond argument that the purposes of the BIOT Order and the Ordinance were to facilitate the use of Diego Garcia as a strategic military base and to restrict the use and occupation of that and the other islands within the territory to the extent necessary to ensure the effectiveness and security of the base. Those purposes were, or could at least reasonably be described as, of great benefit to the {p.13} United Kingdom and the western powers as a whole. The applicant acknowledges this.”

[Regina (Bancoult) at 1106.]

 7  The other Baker v. Carr factors will be discussed at length in the forthcoming Motion to Dismiss. Briefly, stated: There are no judicially discoverable and manageable standards by which to judge the importance of Diego Garcia to the Nation’s security; Resolving this case would necessarily require the Court to make policy decisions of a kind clearly for nonjudicial discretion pertaining to national defense and foreign policy; Adjudicating this case would express a lack of respect for the political branches of government; Finally, this is a situation in which there is need to adhere to a political decision already made and in which there is a potential for embarrassment if the Judicial and Executive branches make conflicting pronouncements on important questions relating to foreign affairs. In Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985), a suit challenging United States’ alleged support for the Contras in Nicaragua, then Judge Scalia alluded to this latter issue, stating:

“The foreign affairs implications of suits such as this cannot be ignored—their ability to produce what the Supreme Court has called in another context “embarrassment of our government abroad” through “multifarious pronouncements by various departments on one question.” Baker v. Carr, 369 U.S. 186, 226, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Whether or not the {p.18} present litigation is motivated by considerations of geopolitics rather than personal harm, we think that as a general matter the danger of foreign citizens’ using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.”

 8  Many assertions in Plaintiffs’ brief, including “The Facts of the Case” portion (pp. 2-5), are supported only by reference to allegations in the Complaint.

There are significant evidentiary problems even when plaintiffs refer to the Attachments served with their Motion for Preliminary Injunction. Of the six attachments, only two appear to be properly executed affidavits. Attachments 1 and 2, apparently declarations by Mr. Florian and Mr. Jaffa, respectively, have been combined so that the first page bears Mr. Florian’s name and the second page bears Mr. Jaffa’s signature. As reflected in the fax origination line at the top of the first three pages of the attachments faxed by plaintiffs, those three pages (attached hereto at Tab C) are: 1. a page marked “Attach. 1”, bearing the name Jacques Gervais Florian; 2. a page which follows grammatically after page 1, but bears the signature of Pierre Willy Jaffa, and; 3. a page marked “Attach. 3”, bearing the name Louis Olivier Bancoult. The combining of the Florian and Jaffa affidavits may well be an administrative oversight. Nonetheless, no proper affidavit of Mr. Florian or Mr. Jaffa has been filed. Attachment 5 was apparently taken from a website. Attachment 6 is an unsigned declaration. None of these four attachments constitutes evidentiary support for their motion. Nor do the attachments support the assertions for which they are cited. For example, the brief asserts that: “Chagossians have been threatened and harassed by BIOT patrols acting on behalf of the United States and the United Kingdom Governments. See e.g., Florian Aff. Attach. 1 ¶¶ 6, 10; Jaffa Aff. Attach 2 ¶¶ 6, 10.” Pl.Br. at 4. {p.23} But the cited paragraphs do not mention the United States. Other averments rely on hearsay contained in paragraphs 7-9 of Mr. Bancoult’s Affidavit.

 9  The Florian/Jaffa affidavit expressed irritation and frustration at the specific acts of two British government employees, Pl. Attach. 1, ¶¶ 7 and 10, but do not reflect a loss of self-esteem.

 10  It is unclear whether the policy of not hiring Chagossians discussed in the Bancoult and Emilien affidavits has been altered by the Queen’s Bench decision in favor of Mr. Bancoult. Those portions of the affidavits of Mr. Bancoult and Mr. Emilien (plaintiffs’ Attachments 3 and 4) which are based on personal knowledge appear to relate to events which took place prior to the November, 2000, Queen’s Bench ruling in favor of Mr. Bancoult. Mr. Bancoult frankly acknowledged that he quit applying for positions on Diego Garcia; “after nine attempts, I gave up....” Bancoult Aff. ¶ 6. Likewise, Mr. Emilien stopped working as a recruitment consultant relating to Diego Garcia in December 1999. Emilien Aff. ¶ 15.

 11  Plaintiffs claim that “[t]oday, there are approximately 4,466 Chagossian men, women, and children who either were born in Chagos or are direct descendants of individuals born in Chagos.” Complaint ¶ 8.

 

Source: Photocopy of a duplicate original (the Court’s file copy).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, text beside a green bar (   ), text in yellow boxes, highlighting, added paragraphing, added quotes around indented quotations, box at footnote 5.

This case: Bancoult v. McNamara, complaint filed, Dec. 20 2001, refused to adjudicate, 370 F.Supp.2d 1 (D.D.C., No. 01-CV-2629, Dec. 21 2004), appeal docketed, Feb. 22 2005, affirmed refusal to adjudicate, 445 F.3d 427 {justia, altlaw, 147kb.pdf, copy} (D.C. Cir., No. 05-5049, April 21 2006), petitions to rehear and en banc filed, June 5 2006, denied, July 11 2006, petition for certiorari docketed, Oct. 11 2006, refused to review refusal to adjudicate, certiorari denied, 549 U.S. — (U.S., No. 06-502, Jan. 16 2007).

Commentary: Diego Garcia: The Criminal Question Doctrine and Bancoult v. McNamara.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Jan. 6 2003. Updated May 16 2008.

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