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Full-text: March 21 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Mar 21 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.)
 )

Individual Defendants’ Motion to Dismiss

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the defendants, Donald H. Rumsfeld, Robert S. McNamara, Melvin R. Laird, James R. Schlessinger, Thomas Moorer, James L. Holloway, Eric D. Newsom and George T. Churchill (hereinafter “individual federal defendants”), hereby move to dismiss the complaint on the grounds that the Court lacks jurisdiction over the subject matter and the complaint fails to state a claim upon which relief can be granted. A Certification of Scope of Employment pursuant to 28 U.S.C. § 2679(d)(1), and a Memorandum of Points and Authorities have been filed in support of this motion. A proposed Order has been tendered for the Court’s convenience.

Wherefore the defendants move for the relief described above.

Respectfully submitted,

{List of lawyers, and signatures, same as below}

Attorneys for Defendants
Rumsfeld, McNamara, Laird, Schlessinger,
Moorer, Holloway, Newsom and Churchill

Dated: March 21, 2002

Exhibit 1: Certification of Scope of Employment

______________________

Certificate of Service

I hereby certify that on March 21, 2002, I served a true copy of the foregoing Motion to Dismiss, along with a proposed Order, by first class mail, postage pre-paid, addressed to counsel as follows:

{List of lawyers, and signature, same as below}

 

{Separate document, case caption omitted}

Memorandum of Points and Authorities in Support of Individual Federal Defendants’ Motion to Dismiss

The plaintiffs in this action allege that they are indigenous people of the Chagos Archipelago, a cluster of 52 small islands located just south of the Equator, in the middle of the Indian Ocean. The largest of those islands, Diego Garcia, is a mere 10.5 miles in size, but “plays host to 23 tenant commands and personnel from the U.S. Navy, Air Force, Army and Marine Corps.” Declaration of Captain Michael C. Lucarelli, United States Navy ¶ 2 (Tab A to United States’ Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction). The United States Navy Support Facility on Diego Garcia supports deployed forces in important military operations including Operation Desert Shield/Desert Storm and more recently Operation Enduring Freedom. See id. The Chagos Archipelago, {p.2} including Diego Garcia, are territories of the United Kingdom administered as the British Indian Ocean Territories (“BIOT”). See id. ¶ 2.

According to the plaintiffs’ complaint, in the mid-1960s, officials of the United States and United Kingdom commenced negotiations to establish United States military facilities in the Indian Ocean. Compl. ¶ 17. Diego Garcia in the Chagos Archipelago was identified as the site for those proposed facilities. See id. Accordingly, Britain detached the Chagos Archipelago from Mauritius, id. ¶ 18, and constituted the island (together with certain other islands in the archipelago) as a separate colony to be known as the “British Indian Ocean Territory” (“BIOT”). See Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and Another, Queens Bench Division, 2001 Q.B. 1067, 2000 WL 1629583, at pp. 1075-76. According to the complaint, United States and British officials concluded that the building of defense facilities on Diego Garcia would imply the displacement of the island’s existing population. See Compl. ¶ 17.

So it came to be, according to the plaintiffs, that they were forcibly removed from the Chagos Archipelago and brought to Mauritius and Seychelles. See Compl. ¶ 22. In addition, “[d]uring the ensuing years, and continuing to this day, Defendants and/or their agents repeatedly rebuffed efforts to settle Plaintiffs, to {p.3} repatriate Plaintiffs, or to provide compensation for Plaintiffs’ losses.” Compl. ¶ 24. The plaintiffs also allege that their real and personal property have been damaged as the result of construction and continued expansion of the military facility on Diego Garcia, including, but not limited to, dredging the lagoon, construction of an airstrip and parking aprons for aircraft, construction of transmitter and receiver structures and construction of housing, entertainment and support facilities. See id. ¶ 25. The plaintiffs further allege that they are barred from returning to Chagos, see id. ¶ 26, and that they are refused employment as laborers in construction projects on Diego Garcia. See id. They purport to bring claims for damages as well as injunctive relief under international law and District of Columbia tort law. See Compl. ¶ 3.

Among the several defendants are Secretary of Defense Donald Rumsfeld, former Secretaries of Defense Robert S. McNamara, Melvin R. Laird and James R. Schlessinger, as well as former Chiefs of Naval Operations Admiral Thomas Moorer and James L. Holloway, III. Also named as defendants are former Assistant Secretary of State for Political-Military Affairs Eric Newsom and George T. Churchill, Director of the State Department’s Office of International {p.4} Security Operations, Bureau of Political Military Affairs. 1  Each of these current and former government officials apparently are sued in an individual capacity for damages. Cf. Compl. ¶ 5.

As should be clear from the evidentiary material the United States submitted in opposition to the plaintiffs’ motion for a preliminary injunction, many of the complaint’s allegations are disputed. For purposes of the present motion, however, Secretary Rumsfeld and the other individual federal defendants assume for argument’s sake that the allegations could be proven. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gilvin v. Fire {78kb.html}, 259 F.3d 749, 756 (D.C. Cir. 2001). The complaint states no valid legal claims against the official defendants in their individual capacities and accordingly, the claims against those defendants should be dismissed as explained below. 2  {p.5}

Argument
I.

The Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified in part at 28 U.S.C. §§ 2671, 2674, 2679), generally confers upon all federal officers and employees a broad absolute immunity from suit for their “negligent or wrongful act[s] or omission[s]” while acting in the scope of office or employment. See 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 163 (1991). See also Kimbro v. Velten, 30 F.3d 1501, 1504 (D.C. Cir. 1994). Under the Act (often referred to as the “Westfall Act”), once the Attorney General has certified that the defendant official acted in the scope of office or employment at the time of the incident out of which the plaintiffs’ claims arose, the individual defendant is to be “dismissed from the action and the United States is substituted as defendant.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995).

In this case, the Attorney General’s designee has certified that Secretary Rumsfeld, former Secretaries McNamara, Laird and Schlessinger, Admirals Moorer and Holloway and Messrs. Newsom and Churchill all were acting in the scope of employment at the relevant time. The Westfall Act therefore disposes of the plaintiffs’ individual capacity claims against these defendants. That includes {p.6} the various claims purportedly brought under treaty, international law and the Alien Tort Claims Act, 28 U.S.C. § 1350. The Westfall Act was intended to confer upon federal officials a form of absolute immunity from suit in all but two narrow categories of federal claims for relief; categories into which the plaintiffs’ claims in this case do not fall.

Congress wrote the Westfall Act to preclude any civil suit against a government employee based upon “the negligent or wrongful act or omission of [that] employee of the Government while acting within the scope of office or employment,” and the Act makes an FTCA suit against the United States plaintiffs’ exclusive means of recovery on any such claims. See 28 U.S.C. § 2679(b)(1). There are but two exceptions to this broad rule of statutory immunity, and neither applies here.

First, Congress preserved personal liability in so-called “Bivens actions,” i.e., suits against government officials in an individual capacity to recover money damages for alleged violations of the Constitution, e.g., Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See 28 U.S.C. § 2679(b)(2)(A). That exception is inapplicable here because the plaintiffs do not invoke the United States Constitution. Second, Congress preserved personal liability for certain federal statutory claims – those which are “brought {p.7} for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). This second exception to the general rule of immunity also does not apply here. To the extent the plaintiffs rely on various treaties or on sources of international law as the basis for the rights they claim were infringed, see Compl. ¶ 1, their suit simply is not one “brought for a violation of a statute of the United States.” The same obviously is true of the plaintiffs’ various claims under District of Columbia law.

That is true notwithstanding the plaintiffs’ reliance on the Alien Tort Claims Act, 28 U.S.C. § 1350. Section 1350 provides simply that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” It is doubtful that the official conduct alleged here even is actionable under § 1350. 3  In any event, § 1350 clearly creates no substantive rights or duties such that § 1350 can be “violated;” a necessary requirement for application of the § 2679(b)(2)(B) exception. See Smith, 499 U.S. at 173-74. Instead, § 1350 contemplates that the {p.8} district courts can entertain an action for the violation of substantive rights conferred elsewhere, namely by the law of nations or by a treaty of the United States. Accordingly, because United States officials cannot “violate” § 1350, the liability-preserving exception of § 2679(b)(2)(B) does not apply to such claims. See, e.g., Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045, 1053-54 (9th Cir. 2001) (so holding) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. See also United States v. Smith, 499 U.S. at 173-74. Accordingly, all of the individual capacity defendants are absolutely immune from the plaintiffs’ suit, and the action should be dismissed as to them.

II.

A.

Other defenses also bar the plaintiffs’ damages claims at the threshold. First, the plaintiffs’ suit presents a non-justiciable political question over which the Court lacks subject matter jurisdiction. Under Baker v. Carr, 369 U.S. 186, 217 (1962):

“Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a {p.9} political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Id. at 217. Whenever even one of these factors is “inextricable from the case at bar,” the suit must be dismissed because its judicial resolution can be obtained only by the resolution of an otherwise non-justiciable question. See id.

In this case, the plaintiffs essentially challenge their treatment as the result of agreements reached between the United States and the United Kingdom regarding the establishment of United States military facilities on British territory. The plaintiffs also challenge their relocation and exclusion from the Chagos Archipelago as an alleged means of implementing those agreements. See Compl. ¶¶ 1, 17-26. The appropriateness of those agreements and the means of their implementation plainly raise a political question. First, there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department.” id. It is elementary that “[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative – ‘the political’ – Departments.” Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 934 (D.C. Cir. 1988). The same is true for the national security interests at stake here – such matters are constitutionally committed to the President and the {p.10} Congress. See, e.g., Industria Panificadora, SA v. United States, 763 F.Supp. 1154, 1159-61 (D.D.C. 1991), aff’d on other grounds, 957 F.2d 886 (D.C. Cir. 1992). See also Eminente v. Johnson, 361 F.2d 73 (D.C. Cir. 1966) (per curiam). The plaintiffs allege that they are foreign nationals injured as the result of agreements the United States made with another government for the purpose of establishing military installations on foreign soil. Such matters clearly implicate foreign and national security policy constitutionally committed to the Executive and Legislative Branches.

Next, there are no “judicially discoverable or manageable standards,” Baker, 369 U.S. at 217, by which the Court could evaluate the wisdom or propriety of the agreements at issue or the means of their implementation. Similarly there are no judicially discoverable or manageable standards by which the Court can evaluate whether the Diego Garcia installations’ value to the United States, Great Britain and their allies outweighs the harms alleged by the plaintiffs. For essentially the same reasons, it would be impossible to decide this case “without an initial policy determination of a kind clearly for nonjudicial discretion.” Id.

The other Baker factors also are plainly applicable and show this case to raise a nonjusticiable political question. Decision of the controversy presented here would be impossible “without expressing lack of the respect due coordinate {p.11} branches of government.” Baker, 369 U.S. at 217. Both the Executive and Legislative Branches have determined that establishing and maintaining military installations on Diego Garcia are in the United States’ national interest. The plaintiffs ask the Court to declare those policy judgments – judgments well within the constitutional power of the Executive and Legislative Branches – to be in violation of treaty and international law and to award damages against those executive officials allegedly responsible for the policies at issue. Yet the power of the President and Congress to disregard international law when in the national interest is well-established and generally beyond judicial review. See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446, 1454 (11th Cir. 1986). See also United States v. Berrigan, 283 F.Supp. 336, 342 (D. Md. 1968) (“Whether the actions by the executive and legislative branches in utilizing our armed forces are in accord with international law is a question which necessarily must be left to the elected representatives of the people and not the judiciary. This is so even if the government’s actions are contrary to valid treaties to which the government is a signatory.”); Restatement (Third) Foreign Relations Law of the United States, § 115, Reporters Note 3 {ISBN: 0314301380, LCCN: 86020665, WorldCat} (“There is authority for the view that the President has the power, when acting within his constitutional authority, to disregard a rule of international law or an agreement of the United States.”); L. Henkin, Foreign {p.12} Affairs and the Constitution, at 221-22 (1972) (“[T]he courts will give effect to acts within the constitutional powers of the political branches without regard to international law.”). Cf. Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988) (“Congress’ violation of a treaty is not cognizable in domestic court.”). Acting well within their constitutional authority, the Executive and Legislative Branches have made their respective judgments regarding the interplay of international law and United States national interest in this context, and adjudication of the claims at issue here necessarily would express “lack of the respect due coordinate branches of government.” Baker, 369 U.S. at 217. 4 

Finally, the Fifth and Sixth Baker factors also are plainly implicated here. First, Diego Garcia fairly can be described as hosting essential United States military facilities that presently support on-going military operations in Afghanistan. Accordingly there is “an unusual need for unquestioning adherence {p.13} to a political decision already made.” Id. To grant the relief the plaintiffs seek may well imply the curtailment of United States military activities on Diego Garcia and in all events could signal apparent indecision or lack of resolve on the part of the United States as to its military commitments in Afghanistan and elsewhere in the Middle East and Asia. Indeed, for those reasons, this case similarly raises “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id. Cf. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) (declining to recognize constitutional tort claim based on support for Nicaraguan rebels and observing “[t]he 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."’ (citation omitted)). Because a political question so clearly appears on the face of the complaint, dismissal for lack of a justiciable claim is appropriate.

B.

In addition, the plaintiffs’ various claims against Secretary Rumsfeld and the other individual capacity federal defendants – claims arising from events occurring over thirty years ago – clearly are time-barred. Although generally an affirmative {p.14} defense, the statute of limitations appropriately is raised by a pre-answer motion to dismiss “when the facts that give rise to the defense are clear from the face of the complaint.” Smith-Haynie v. District of Columbia {24kb.html}, 155 F.3d 575, 577 (D.C. Cir. 1998). That is so here.

As a threshold matter, the general rule is that where Congress has not provided a statute of limitations applicable to a federal cause of action, courts adjudicating such claims are to “borrow” analogous state statutes of limitations. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158 (1983); Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 340 (D.C. Cir. 1991).

Were the general rule to be applied, the plaintiffs’ international law and ATCA claims presumably would be governed by the three-year personal injury statute of limitations set forth in D.C. Code § 12-301(8). The ATCA embraces claims brought by an alien “for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. As with claims for the violation of federal civil rights, the liability in question appears to be for a species of personal injury tort, and the personal injury tort statute seems the most readily analogous state statute of limitations. See, e.g., Owens v. Okure, 488 U.S. 235, 243-50 (1989); Wilson v. Garcia, 471 U.S. 261, 276 (1985). See also Carney v. The American University {24kb.html}, 151 F.3d 1090, 1096 (D.C. Cir. 1998). {p.15}

Yet there is an exception to the general rule that state statutes of limitations are to be borrowed “when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.” Reed v. United Transp. Union, 488 U.S. 319, 323 (1989) (quoting DelCostello, 462 U.S. at 172). This exception, though, is a narrow one – “analogous state statutes of limitations are to be used unless they frustrate or significantly interfere with federal policies.” Reed, 488 U.S. at 326 (emphasis added). 5 

Since 1992, when Congress amended the ATCA by enacting the Torture Victims Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (“TVPA”), several courts have reasoned that the TVPA’s ten-year statute of limitations, see TVPA § 2(c), 102 Stat. at 73, applies to all ATCA claims regardless of whether the particular claim is actionable under the TVPA. See In re World War II Era Japanese Forced Labor Litigation {96kb.html/txt}, 164 F.Supp. 2d 1160, 1180 (N.D. Cal. 2001); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1547 (N.D. Cal. {p.16} 1987) {105kb.html}; Iwanowa v. Ford Motor Co., 67 F.Supp. 2d 424, 662 (D.N.J. 1999); Xuncax v. Gramajo, 886 F.Supp. 162, 191-92 (D. Mass. 1995). These courts appear to have reasoned that while ATCA actions “closely resemble[] a personal injury suit,” the TVPA “is directed at conduct committed in foreign nations that violates customary international law (torture and extrajudicial killing), much like a cause of action under the ATCA would address,” and that therefore “the TVPA is a much better analogy than state law.” In re Forced Labor Litigation {96kb.html/txt}, 164 F.Supp.2d at 1180. But see Sampson v. Federal Republic of Germany, 975 F.Supp. 1108, 1122 (N.D. Ill. 1997) (applying state statute of limitations to Holocaust survivor’s suit against Germany without discussion of TVPA), aff’d, 250 F.3d 1145 (7th Cir. 2001). That these cases are correct in reasoning that the TVPA’s 10-year period should apply as the “better” analogy is far from clear. The rule, after all, appears to be that “analogous state statutes of limitations are to be used unless they frustrate or significantly interfere with federal policies.” Reed, 488 U.S. at 326 (emphasis added). That application of state personal injury statutes of limitations to a suit brought by an alien “for a tort only, committed in violation of the law of nations or a treaty of the United States” is any more problematic than their application to suits brought for the violation of federal constitutional rights, see Wilson, 471 U.S. at 276, is not readily apparent. {p.17}

The Court need not resolve in this particular case what is the most appropriate statute of limitations in ATCA cases that do not rely on the TVPA cause of action. It is clear that the plaintiffs’ various claims are time-barred even if the 10-year TVPA limitations period were applied. According to the complaint, “[f]rom about 1965 until about 1973, Defendants and/or their agents forcibly removed Plaintiffs from their homeland in Chagos.” Compl. ¶ 21. Further, plaintiff Bancoult’s family left Diego Garcia in 1967 and “after a few months” attempted to return home but “were told that communications had been severed with Chagos, that the islands had been sold, and that no more ships were to travel there.” id. As for plaintiff Mein, “[i]n September, 1971, individuals acting on behalf of the governments of the United States and the United Kingdom forced Ms. Mein, her family, and dozens of other Chagossians to board a boat – leaving their homes, their land, their family graves and almost all of their possessions behind.” id. ¶ 32.i. 6  {p.18}

“A cause of action accrues, under federal law, ‘when the plaintiff knows or has reason to know of the injury which is the basis of the action.’” Brown v. NationsBank Corp. {41kb.html}, 188 F.3d 579, 589-90 (5th Cir. 1999) (citation omitted), cert. denied, 530 U.S. 1274 (2000). See also Connors, 935 F.2d at 342. In this action – which purports “to seek relief for the mistreatment of Plaintiffs, redress for Defendants’ wrongful conduct surrounding the forced removal of Plaintiffs, and the destruction of Plaintiffs’ property,” Compl. ¶ 2 – all of the plaintiffs necessarily knew the fact of injury and its cause no later than 1973 when the alleged forced removal of the Chagossians from Diego Garcia and adjacent islands allegedly was completed. See Compl. ¶ 21. The lawsuit having been filed in December, 2001, the plaintiffs’ claims are untimely even applying the more generous TVPA 10-year limitations period.

“Statutes of limitations, which ‘are found and approved in all systems of enlightened jurisprudence,’ Wood v. Carpenter, 101 U.S. 135, 139, 25 L. Ed. 807 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right {p.19} to be free of stale claims in time comes to prevail over the right to prosecute them.’ Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S. Ct. 582, 586, 88 L. Ed. 788 (1944).” United States v. Kubrick, 444 U.S. 111, 117 (1979). They serve an important public interest by encouraging prompt presentation of claims and “protect[ing] defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by a loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” Id. (citations omitted). The events forming the basis for the plaintiffs’ claims occurred nearly thirty years ago. For that reason, and because these claims are not otherwise cognizable, the plaintiffs’ claims against Secretary Rumsfeld and the other individual defendants appropriately are dismissed. {p.20}

Conclusion

For the foregoing reasons, the Individual Defendants’ Motion to Dismiss should be granted.

Respectfully submitted,

Robert D. McCallum, Jr.
Assistant Attorney General, Civil Division

Roscoe C. Howard, Jr.
United States Attorney

John Lodge Euler
Acting Director, Torts Branch, Civil Division

R. Joseph Sher
Senior Trial Counsel, Torts Branch, Civil Division

 

Signature: Richard Montague

{Signature}

Richard Montague
Trial Attorney
Constitutional & Specialized Tort Litigation Staff
Torts Branch, Civil Division
Department of Justice
Box 7146 Washington, D.C. 20044
Phone: (202) 616-4158
Facsimile: (202) 616-4314

Attorneys for Defendants Rumsfeld, McNamara, Laird, Schlessinger, Moorer, Holloway, Newsom and Churchill

Dated: March 21, 2002 {p.21}

______________________

Certificate of Service

I hereby certify that on March 21, 2002, I served a true copy of the foregoing Memorandum of Points and Authorities by first class mail, postage pre-paid, addressed to counsel as follows:

Michael E. Tigar, Esq.
4801 Massachusetts Avenue, N.W.
Room 460
Washington, D.C. 20016

Elaine Lacy
Trial Attorney
Torts Branch, Civil

Harry Reasoner
Vinson & Elkins
1001 Fannin Street, Suite 2300
Houston, Texas 77002-6760

Signature: Richard Montague

 

{Signature}

Richard Montague

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.6).  CJHjr

 1  The complaint mistakenly identifies Mr. Churchill as “Director of International Security Operations of the Department of Defense in the years 1974-1977.” Compl. ¶ 43.

 2  To the extent the plaintiffs also purport to sue Secretary Rumsfeld, or any other individual defendant, in an official capacity, their claims are in reality claims against the United States and subject to the Government’s own defenses. See generally Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). See also Daskalea v. District of Columbia {66kb.html}, 227 F.3d 433, 448 (D.C. Cir. 2000). The United States has moved to dismiss those official capacity claims, and they are not further addressed here.

 3  Although some courts have recognized § 1350 to authorize a cause of action for aliens seeking redress for violations of international law, see, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the issue remains undecided in this Circuit. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 811-16 (D.C. Cir. 1984) (Bork, J., concurring) (concluding that § 1350 confers jurisdiction but does not by itself confer a cause of action), with id. at 791-96 (Edwards, J., concurring) (concluding that § 1350 does provide a private cause of action). See also Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-07 (D.C. Cir. 1985).

 4  The same is true to the extent the plaintiffs purport to rely on District of Columbia tort law, see Compl. ¶ 3.i. The Constitution commits the power to conduct foreign affairs exclusively to the President and Congress, and therefore state law is not an appropriate lens through which to judge the propriety of their actions. Cf. Zschernig v. Miller, 389 U.S. 429, 440-41 (1968) (because Oregon probate statute could adversely affect foreign relations it trenched upon the exclusive federal power regarding foreign affairs and could not be enforced). See also National Foreign Trade Council v. Natsios {122kb.html/txt}, 181 F.3d 38, 52 (1st Cir. 1999) (“Zschernig stands for the principle that there is a threshold level of involvement in and impact on foreign affairs which the states may not exceed.”), aff’d on other grounds, sub nom. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).

 5  In 28 U.S.C. § 1658, Congress enacted a four-year “catch all” statute of limitations for federal civil causes of action for which Congress otherwise has not expressly provided a statute of limitations. Section 1658 applies, however, only if the cause of action arises under a federal statute that itself was enacted subsequent to December 1, 1990, the date on which § 1658 was enacted. Hence § 1658 is inapplicable here.

 6  The third individual plaintiff, Marie Isabelle France-Chariot, was not born until 1978, and apparently sues based on alleged “social, cultural, and economic oppression” resulting from being born and apparently living her entire life on Mauritius, rather than on Diego Garcia. See Compl. ¶ 33. Not only is this claim time-barred, it fails the essential constitutional requirements of standing –

“(1) that the plaintiff have suffered an ‘injury in fact’ – an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of – the injury must be fairly {p.18} traceable to the challenged action of the defendant, and not the result of independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Bennett v. Spear, 520 U.S. 154, 167 (1997).

 

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

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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 Dec. 5 2002. Updated May 16 2008.

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