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

United States District Court for the District of Columbia

 

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

Defendant United States of America’s Motion to Dismiss

Defendant United States of America, by its undersigned attorneys, moves pursuant to 12(b)(1) of the Federal Rules of Civil Procedure to dismiss this action on the grounds that the Court lacks jurisdiction over the subject matter of the action. In support of this motion, the Court is respectfully referred to the Exhibits attached to this motion, the memorandum of law filed in support of the motion, and the entire record in this case.

Respectfully submitted,

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

Attorneys for United States of America

Dated: March 21, 2002

 

{Separate document, case caption omitted}

Memorandum in Support of Defendant United States’ Motion to Dismiss

I.
Introduction

The plaintiffs, British Indian Ocean Territory citizens, seek money damages and injunctive relief in the form of access to the Chagos Archipelago for thousands of Chagossian men, women, and children. They also seek alterations in alleged hiring practices of contractors to the Navy on Diego Garcia. 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 injunctive relief 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. The British Indian Ocean Territory, Ordinance No 5 of 2000, (Enacted by the Commissioner for the British Indian Ocean Territory) {on orders of the British Prime Minster: BIOT is governed in London by chain-of-command. – CJHjr}, (hereinafter “BIOT Ordinance”), Exhibit A to Motion to Dismiss; Exchange of Notes, Attachments to Declaration of Michael D. Lucarelli, Attachment to United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction, (“Lucarelli Dec.” with attachments attached as Exhibit B to Motion to Dismiss).

This action must be dismissed because the Court lacks subject matter jurisdiction under any statute, and plaintiffs’ claims present a non-justiciable political question. 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 {p.2} controls access to the BIOT. Id. Nor can money damages be awarded, because by plaintiffs’ own admission, they have not satisfied the administrative prerequisites to bringing a suit against the United States pursuant to the Federal Tort Claims Act, and none of the other provisions of law plaintiffs cite provides a waiver of sovereign immunity to award money damages against the United States. Accordingly, this action should be dismissed. 1 

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, copy attached as Exhibit B to Motion to Dismiss (“Lucarelli Dec.”) ¶ 12. 2  The {p.3} 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 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, {p.4} Queens {sic: Queen’s} Bench Division, 2001 Q.B. 1067, 2000 WL 1629583, at pp. 1075-76, Exhibit C to Motion to Dismiss.

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.) 3  Pursuant to the BIOT 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.

In 1975 Congress was called upon to approve funding for a major build up of the base on Diego Garcia. In connection with the funding request, the House Committee on International Relations, Special Subcommittee on Investigations, held hearings in June and November of 1975. See “Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants” {575 kb}, Hearings Before the Special Subcommittee On Investigations of the Committee On International Relations, House of Representatives, 94th Congress, First Session, June 5 and November 4, 1975, pp.i-vi; 1-123, Exhibit D to Motion to Dismiss. During these hearings {p.5} three main topics were addressed: The role of the Soviet Union in the Indian Ocean; the impact of the build up at Diego Garcia on arms limitations negotiations; and the status of the individuals who were removed from the islands to make room for the base. Id. Congressional Hearings at pp. v-vi. During the first hearing on June 5, there was testimony that there were no inhabitants on Diego Garcia. Id. at p. 22. After those hearings, much was written in the press regarding how the islands came to be depopulated by Great Britain. See “The Diego Garcians”, Editorial from the Washington Post, September 11, 1975, Appendix 5 to Hearings, at p.105. The editorial states:

Id. After this and other press coverage over the fate of the former inhabitants, hearings were again held on November 4, 1975, in which fate of the Chagossians was examined in detail. See generally, Hearings at pp. 37-103 {575 kb}. Notwithstanding the revelations in the press and during those hearings, the build-up of the base on Diego Garcia went forward with Congressionally-appropriated funds.

The operation of the base today continues consistent with the terms of the BIOT Agreement. 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. Lucarelli Dec. 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; see also, BIOT {p.7} Ordinance at ¶ 4, Exhibit A.

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 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. {p.8}

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 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. And, indeed, on November 8, 2000, Britain, acting through the Commissioner for the British Indian Ocean Territory, issued Ordinance No. 5 of 2000, which repealed the Ordinance of 1971, pursuant to which the plaintiffs, as Chagossians, were excluded from the Archipelago, and provided for their access (except to Diego Garcia). See BIOT Ordinance, ¶ 4(3)-(10), Tab A to Motion to Dismiss. {p.9}

III.
Argument

A.  The court lacks subject matter jurisdiction over plaintiffs’ claims against the United States 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 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. 4  {p.10}

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 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, {p.11} 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 claim requirements, 5  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). The Complaints’ “claims for relief” which are enumerated in ¶¶ 59-101, all sound in tort, and are, therefore, barred as against the United States. Finally, while plaintiffs allege that contractors who supply workers to Diego Garcia discriminate against Chagossians, they identify no federal statute or constitutional provision that waives sovereign immunity. Nor do plaintiffs identify any statute providing a jurisdictional basis for a claim against the United States for claims of discrimination in this {p.12} context — foreign workers with no connection to the United States seeking employment in a foreign territory. Nor are these claims actionable under any state law that could apply.

Although absent from the Complaint, in their Reply to Defendant United States’ Opposition to Plaintiffs’ Motion For Preliminary Injunction {withheld by the court clerk from public inspection}, plaintiffs’ assert that the Administrative Procedure Act waives the United States’ sovereign immunity for the injunctive relief they seek, and impliedly, provides jurisdiction for their claim for injunctive relief. The plaintiffs’ reliance on the APA is misplaced. “[T]he APA does not grant judicial review of agencies’ compliance with a legal norm that is not otherwise an operative part of domestic law.” Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988). In Committee of United States Citizens, plaintiffs sought injunctive and declaratory relief against funding of the Nicaraguan Contras on the ground that it violated the APA, the Fifth Amendment, the United Nations Charter and customary international law. The Court of Appeals affirmed dismissal of the suit, holding that the APA does not provide judicial review of an agency’s alleged failure to comply with international law. Rather “‘[b]ecause the APA provision on reviewability is always dependent on other law, the law of reviewability is essentially the same as it would be without any APA provision.’” Id. (citations omitted).

Simply put, there can be no injunction issued pursuant to APA review that is not a remedy for a violation of a federal statute or Constitutional provision. The APA does not apply where there is no alleged violation of a statute which provides judicially discoverable and manageable standards with which to review the challenged agency action. See e.g., 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 {p.13} 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 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.”).

The Complaint does not allege a violation of Constitutional law, and such an allegation would be futile. It is well-settled that constitutional protections do not apply to persons who are not United States citizens located in a foreign country. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that non-resident aliens found outside the United States are not protected by the Fourth Amendment.) 6  The Supreme Court also noted that aliens found outside the United States have no Fifth Amendment rights either:

Id. at 269, citations omitted. Moreover, the Court noted that any restrictions on American activities abroad must be provided not through judicial review but rather “by the political branches through diplomatic understanding, treaty, or legislation.” Id. at 275.

Finally, plaintiffs cannot rely on the APA, because the statue of limitations applicable to APA actions is six years. 28 U.S.C. § 2401(a). All of plaintiffs’ factual assertions upon which they base their claim, including allegations of deception on the part of persons in both the British and the United States governments, were public at the time of the 1975 Congressional Hearings. See “Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants” {575 kb}, Hearings Before the Special Subcommittee On Investigations of the Committee On International Relations, House of Representatives, 94th Congress, First Session, June 5 and November 4, 1975, pp.i-vi; 1-123, Exhibit D to Motion to Dismiss.

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, 1602-1611 (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 {p.15} 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 waives the United States’ sovereign immunity for claims 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 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. {p.16}

B.  The court lacks subject matter jurisdiction over the claims against the United States because this action involves a non-justiciable political question

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 excludes 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 monetary damages and injunctive relief against the United States government and certain current and former officers and employees of the 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 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 {p.17} 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. First, the Constitution assigns authority over foreign affairs to the political branches. 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 v. United States, 873 F.2d 369, 379-80 (D.C. Cir. 1989). Second, there are no judicially discoverable and manageable standards by which to judge the importance of Diego Garcia to the Nation’s security; Third, resolving this case would necessarily require the Court to make policy decisions of a kind clearly for non-judicial discretion pertaining to national defense and foreign policy; Fourth, adjudicating this case would express a lack of respect for the political branches of government; Fifth, because Congress almost thirty years ago gave consideration to the plaintiffs’ arguments and acted nonetheless to fund the buildup of the base there is “an unusual need for unquestioning adherence to a political decision already made”; and finally, there is a potential for embarrassment if the Judicial and Executive branches make conflicting pronouncements on important questions relating to foreign affairs. {p.18}

1.  The conduct challenged is embraced by a “textually demonstrable Constitutional commitment of the issue to a coordinate political department”

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 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 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, {p.19} which are bound to accept that determination, although they are free to draw for themselves its legal consequences in litigations pending 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 whom 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 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. {p.20} 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).

The political nature of the conduct the plaintiffs challenge is underscored by the injunctive relief they seek: Plaintiffs seek “immediate return to Chagos and limited commercial access to the airstrip on Diego Garcia.” Complaint, ¶ 104. Yet as discussed at length, supra, the Chagos Archipelago is part of the BIOT, of which Britain is sovereign. The British control legal and de facto access to Chagos Archipelago. See “Exchange of Notes”, attachment to Lucarelli Dec., Exhibit B to Motion to Dismiss; BIOT Ordinance No. 5 of 2000, Exhibit A to Motion to Dismiss; Lucarelli Dec. ¶¶ 2-11. Plaintiffs imply that Britain acts at the behest of the United States; See e.g. Complaint, ¶¶ 9-28. Even if that were true, the fact remains that to alter the status quo through an injunction against the United States, the Court would have to order the United States to seek a change in Britain’s behavior toward the plaintiffs. The Court has no authority to direct the Executive Branch in diplomatic discussions with sovereign nations. See Oetjen v. {p.21} Central Leather Co., 246 U.S. at 302; see also, Smith v. Reagan, 844 F.2d 195, 200 (4th Cir.), cert. denied, 488 U.S. 954 (1988) (The court would not order the President to take steps (which would include diplomatic communications) to determine fate of missing servicemen in Vietnam).

Just as the alleged harm plaintiffs complain of flowed from negotiations between the United States and Britain, any steps which might be taken by the United States to address the Chagossians’ claims must be made by the Executive branch through diplomatic channels with Britain, not by the judicial branch here. See e.g., Hwang Geum Joo v. Japan {142kb.pdf}, 172 F.Supp.2d 52 (D.D.C. 2001). In Hwang Geum Joo v. Japan, Korean women who alleged they had been forced into sexual slavery by the Japanese during WWII, sued Japan. Their suit was barred by sovereign immunity, and the court observed that their claims could not be addressed judicially, but rather were more properly the subject of nation-to-nation negotiations:

There is no question that this court is not the appropriate forum in which plaintiffs [WWII “Comfort Women”] may seek to reopen those discussions nearly a half century later. Just as the agreements and treaties made with Japan after World War II were negotiated at the government-to-government level, so too should the current claims of the “‘comfort women’ be addressed directly between governments.”

Id. at 67 (citing courts reaching same conclusion with respect to claims of victims of Nazi Era.). “The judiciary cannot oversee the conduct of foreign relations, and could not order the President to take specific action to obtain the release of any American it declared to be the object of a wrongful detention.” Smith v. Reagan, 844 F.2d 195, 200 (4th Cir.), cert. denied, 488 U.S. 954 (1988) (declaratory judgment action in which relatives of missing servicemen who served in Vietnam asked court to adjudicate status of missing servicemen presented non-justiciable political question). {p.22}

Indeed, plaintiffs seem to have already obtained from Great Britain a large measure of the relief they purport to seek in this suit. Following the 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, Britain issued The British Indian Ocean Territory Ordinance No. 5 of 2000, Exhibit A to Motion to Dismiss, which amended the ordinance of 1971 which had excluded the Chagossians from the BIOT. According to the ordinance as amended, the exclusion of Chagossians no longer applies to the islands of the BIOT, with the exception of Diego Garcia. See BIOT Ordinance No. 5 of 2000 at § 4(3). Hence, the British seem to have addressed plaintiffs’ desire to return to Chagos, with the exception of access to Diego Garcia.

2.  There is “a lack of judicially discoverable and manageable standards for resolving” the issues presented

The resolution of plaintiffs’ claims would require the Court to second guess the United States’ initial and continuing decisions regarding what measures are necessary, including limiting access to Diego Garcia and the BIOT, to keep the United States’ base on Diego Garcia secure. Factors include how important the base is to the United States’ security both at home and abroad, how instrumental the base is in the United States military operations abroad, including the ongoing war in Afghanistan, and the extent to which the base’s operations would be impaired or compromised by the unregulated presence of Chagossians on Diego Garcia or the neighboring islands in the BIOT. Resolution of these issues would involve inquiry into sensitive military, national security and foreign relation matters. There simply are no standards by which the Court could be guided. 7  {p.23}

Time and again, courts have held no standards exist by which courts may judge the validity of U.S. military operations, both combat and non-combat, in foreign countries. See Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 (D.D.C. 1983) (whether U.S. sponsored raids in Nicaragua violate fundamental human rights under U.S. Constitution and international law presents non-justiciable political question), aff’d, 770 F.2d 202 (D.C. Cir. 1985); Crockett v. Reagan, 558 F.Supp. 893, 898 (D.D.C. 1982) {35kb.pdf} (action by Congressmen to enjoin provision of military aid to El Salvador declared non-justiciable due to lack of discoverable standards to determine whether or not U.S. Military personnel were engaged in hostilities.), aff’d, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984). See also, Rappenecker v. United States, 509 F.Supp. 1024 (N.D. Cal. 1980) (held no standards by which court can judge reasonableness of President’s actions in sending armed forces to any particular region of the world); Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991) (“The elementary cannons of judicial caution are not limited to actions taken during actual wartime, but may extend to many other aspects of military operations.”), cert. denied, 502 U.S. 1030 (1992); Aktepe v. United States, 105 F.3d 1400 (11th Cir. 1997) {16kb.html, 22kb.pdf} (no judicially discoverable and manageable standards to determine whether military’s conduct of NATO training drill was reasonable.), cert. denied, 522 U.S. 1045 (1998); Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34 (2d Cir. 1985) (deployment of cruise missiles in Britain not subject to judicial review); DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir. 1973) (lack of standards to assess decision of President to order mining harbors of North Vietnam.) {p.24}

3.  Plaintiffs’ claim presents “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”

The Supreme Court, first in Baker v. Carr, and subsequently in Japan Whaling Association et al. v. American Cetacean Society, 478 U.S. 221, 230 (1986), has emphasized that “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.” Here plaintiffs’ claims call upon the Court to formulate just such policy: Namely, the extent to which the interests of the plaintiffs in returning to and occupying their ancestral homeland must give way to the national defense needs of the United States and its allies, including Great Britain. As a corollary, the Court would also have to determine what measures regarding exclusion of the plaintiffs from Diego Garcia and the surrounding area are reasonably necessary to maintain the security of the base on Diego Garcia. These are not legal questions. They are political in nature, depending on a weighing of the security interests of the United States and its allies against the claimed interests of the plaintiffs in returning to the islands from which Britain removed them over thirty years ago to make way for the base. Decisions regarding what measures are necessary to provide for national security raise “an initial policy determination of a kind clearly for nonjudicial discretion.” See Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34, 36 (2d Cir. 1985) (Decision of President and Secretaries of Defense, Air Force and Army regarding deployment of cruise missiles presented initial policy determination clearly not for judicial determination.).

The political rather than legal nature of these decisions is underscored by the fact that the United States Congress grappled with these issues in 1975 when it held hearings to determine whether to authorize, and continue funding for a major build up of the base on Diego Garcia. See {p.25} “Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants” {575 kb}, Hearings Before the Special Subcommittee On Investigations of the Committee On International Relations, House of Representatives, 94th Congress, First Session, June 5 and November 4, 1975, pp.i-vi; 1-123, Exhibit D to Motion to Dismiss. During these hearings Congress addressed the impact of the base on the status of the Chagossians. Id., Congressional Hearings at pp. v-vi. During the first hearing on June 5, there was testimony that there were no inhabitants on Diego Garcia. Id. at p 22. After those hearings, a Washington Post editorial decried the fate of the Chagossians at the expense of the base: “The Diego Garcians”, Editorial from the Washington Post, September 11, 1975, Appendix 5 to Hearings, at p.105. All of the issues the plaintiffs now raise were aired then, and during the continuation of the hearings in November of 1975. Notwithstanding those revelations, the Executive branch persisted in pressing its case with Congress regarding the need for the base, and Congress approved the funding. Hence the two political branches of government long ago considered the arguments plaintiffs now ask this Court to address, and concluded that the base was necessary, notwithstanding that its presence resulted in the continued displacement of the Chagossians. Other courts have declined to second guess Congress and the President in similar circumstances:

[W]e must recognize that those two coordinate branches of government — the Executive by military action and the Congress, by not cutting off the appropriations that are the wherewithal for such action — have taken a position that is not within our power, even if it were our wish, to alter by judicial decree.

DaCosta v. Laird, 471 F.2d 1146, 1157 (2d Cir. 1973) (Refusing to review President’s decision to mine harbors of North Vietnam.) {p.26}

4.  It is impossible for the court to “undertak[e] independent resolution without expressing lack of the respect due coordinate branches of government”

As discussed in the preceding section, Congress and the President explicitly chose to continue and even expand the base operations on Diego Garcia, notwithstanding its impact on the Chagossians. For this Court to reexamine the issue more than 25 years later and come to the opposite conclusion would express lack of respect for the political branches of government. Courts have consistently declined to second guess measures taken to provide for national defense, reasoning that to do so would reflect a lack of respect for the branches of government to which those decisions are properly entrusted: In Aktepe v. United States, 105 F.3d 1400, 1404 (11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998) {16kb.html, 22kb.pdf}, a case in which Turkish crewmen injured by a U.S. missile mistakenly fired during NATO fleet maneuvers, the Eleventh Circuit recognized that the suit would subject “discretionary military and foreign policy decisions to judicial scrutiny, notwithstanding the judiciary’s relative lack of expertise in these areas. The interjection of tort law into the realms of foreign policy and military affairs would effectively permit judicial reappraisal of judgments the Constitution has committed to other branches.” Id; see also, Tiffany v. United States, 931 F.2d 271, 279 (4th Cir. 1991), cert. denied, 502 U.S. 1030 (1992). In Tiffany, a suit seeking damages for the death of a pilot killed in an accident with an intercepting Air Force jet engaged in North American Air Defense Command (“NORAD”) defensive activities, the court observed that:

Nor can we even “undertak[e] independent resolution without expressing lack of the respect due coordinate branches of government.” [citing Baker v. Carr]. Any judgment we might render would lay upon NORAD a strata of tort law which would be both capricious and confining in its impact. {p.27}

Id. See also, Chaser Shipping Corporation v. United States, 649 F.Supp. 736 (S.D.N.Y. 1986) (“Such scrutiny [of decision to mine Nicaraguan harbor] by the judicial branch would also fail to accord appropriate respect to a coordinate branch of the Government.”), aff’d, 819 F.2d 1129 (2nd Cir. 1987), cert. denied, 484 U.S. 1004 (1988). The court in Chaser Shipping quoted Pauling v. McNamara, 331 F.2d 796 (D.C. Cir. 1963), cert. denied, 377 U.S. 933 (1964):

In Pauling ... a suit which sought to enjoin nuclear testing, then Chief Judge Warren E. Burger eloquently stated: That appellants now resort to the courts on a vague and disoriented theory that judicial power can supply a quick and pervasive remedy for one of mankind’s great problems is no reason why we as judges should regard ourselves as some kind of Guardian Elders ordained to review the political judgments of elected representatives of the people. In framing policies relating to the great issues of national defense and security, the people are and must be, in a sense, at the mercy of their elected representatives.

This Court should not revisit decisions made by the President and Congress over 25 years ago, particularly in light of the central role that the base on Diego Garcia plays in our present day national defense endeavors. See Lucarelli Dec., Exhibit B to Motion to Dismiss.

5.  This controversy presents “an unusual need for unquestioning adherence to a political decision already made”

As discussed above, the present case is somewhat unusual in that the plaintiffs’ claims of mistreatment by Great Britain and the United States were aired publicly and vigorously both in newspapers and before Congress over twenty-five years ago. At that time a debate raged as to whether the United States’ base on Diego Garcia, and the build up of that base was in the United States’ best interests. Indeed the Washington Post editorial, which was made an appendix to the 1975 Congressional hearings, argued that the continued presence of the base was unjustified:

[I]t is not a close question at all that the people of Diego Garcia were treated in a shameful way and that they should not be allowed to languish now in the miserable condition to which high stratgy [sic] unfeelingly consigned them. {p.28} * * * Congress should review the issue to ensure fair treatment to the foreign people of the island.

See “The Diego Garcians”, Editorial from the Washington Post, September 11, 1975, Appendix 5 to Hearings, at p.105. After a full airing of the issue, Congress continued to provide financial support for the military presence on Diego Garcia, which continues to this day. The decisions of the Executive and Congress should be respected.

6.  There exists “the potentiality of embarrassment from multifarious pronouncements by various departments on one question”

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, 227, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Whether or not the 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.

Then Judge Scalia’s words have particular relevance in the present situation. Here the circumstances of the United States’ establishment and use of the base on Diego Garcia in a British Territory were the subject of sensitive diplomatic negotiations with Great Britain. Even after objections were raised as to the impact that the establishment and use of the base was {p.29} having on the Chagossians were publicly raised, and examined by Congress, Congress chose to support the base. The Declaration of Captain Lucarelli attests to the vital importance of the base to national security. To say that the United States would be embarrassed were the Court to reverse over twenty-five years of political, diplomatic and defensive policy is an understatement.

An inquiry by this Court into these matters [mining of Nicaraguan harbor] which might result in proving that the prior declarations were erroneous, could indeed be embarrassing to the Government. [citations omitted.] The Court has no choice but to heed the warning of the D.C. Circuit Court of Appeals in Sanchez-Espinoza concerning the acute “danger of foreign citizens using the courts in situations such as this to obstruct the foreign policy of our government ...” 770 F.2d at 209 (Scalia, J.)

Chaser Shipping Corporation v. United States, 649 F.Supp. 736, 740 (S.D.N.Y. 1986), aff’d, 819 F.2d 1129 (2nd Cir. 1987), cert. denied, 484 U.S. (1988).

C.  Plaintiffs lack standing to request the injunctive relief they seek from the United States

To establish standing for an 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 mandatory injunctive relief “directing, among other things: an immediate return to Chagos and limited commercial access to the airstrip on Diego Garcia” [Complaint, ¶ 104], “equal access to Chagos and equal access to employment opportunities on {p.30} Diego Garcia” [Complaint, ¶ 105] and “a declaration that their removal was wrongful and violated their fundamental human rights.” [Complaint, ¶ 106] In seeking this injunctive relief, plaintiffs ignore that issuing the injunction would be an exercise in futility, because it is Britain, 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. 8  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 {p.31} 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 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. Moreover, plaintiffs have in fact sued for relief from Great Britain and have received such relief, both in the form of the Bancoult decision, 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, Exhibit C to Motion to Dismiss, and in the Amended BIOT Ordinance No. 5 2000, which permits them access to the islands other than Diego Garcia, Exhibit A to Motion to Dismiss.

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.), 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 {p.32} plaintiffs only because the United States has, through diplomatic channels, requested them to do so, 9  then the only injunction against the United States that could possibly have any effect would 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 {p.33} 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.

Pharmaceutical Research and Manufacturers of America v. United States, 135 F.Supp.2d at 8-9. Because plaintiffs cannot demonstrate that an injunction would afford them the relief they seek, they lack standing, and injunctive relief must be denied for that reason. {p.34}

IV.
Conclusion

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

 

Dated: March 21, 2002

{p.35}

______________________

Certificate of Service

I hereby certify that on March 21, 2002, I caused to be hand-delivered a true copy of the foregoing United States’ Motion to Dismiss, Exhibits thereto and Supporting Memorandum of Law to the offices of the plaintiffs’ counsel at the following address:

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

 

{Signature}

Elaine Marzetta Lacy

Footnotes

 1  The United States understands that the individual federal defendants will file a separate motion to dismiss.

 2  An electronic signed version of Captain Lucarelli’s Declaration is attached to the United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction, at Tab A. A certified true copy of the original declaration with attachments was filed on March 15. The reason for delay in filing is explained in the Notice of Filing with which the declaration was filed, and in the contemporaneously filed Declaration of JAG Officer Michael D. Lawrence who arranged for transport of the Declaration from Diego Garcia to Washington, D.C.

It is well established that a court has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged pursuant to Fed. R. Civ. P. 12(b)(1), and that this does not convert the motion into one for summary judgment. Evans v. B.F. Perkins Co. {54kb.html}, 166 F.3d 642, 647 (4th Cir. 1999) (“When a defendant challenges subject matter jurisdiction pursuant to 12(b)(1), ‘the district court is to regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.’”) As this Court recognized in Kuffel v. U.S. Bureau of Prisons, 882 F.Supp. 1116, 1120 (D.D.C. 1995):

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a dismissal may be granted by the court if there is a lack of subject matter jurisdiction. The Court may go beyond the pleadings and consider affidavits to determine whether subject matter jurisdiction exists. {p.2} Air Line Pilots Ass’n v. Northwest Airlines, Inc., 444 F.Supp. 1138, 1142 (D.D.C. 1978); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

Accord Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987). See also 5A C. Wright & A. Miller, Federal Practice and Procedure § 1350 at 206-213 (1990).

 3  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:

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.]

 4  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 {p.36} (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.

 5  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.” If and at such time as plaintiffs properly exhaust their administrative remedies and then refile their suit, the United States would move for dismissal. Any FTCA claims arising from the facts alleged in the Complaint are barred inter alia, by 28 U.S.C. §§ 2680(a) (discretionary function) and 2680(k) (foreign country). Moreover, any FTCA claim would be untimely, having been filed more than 30 years after any “tort” occurred. See 28 U.S.C. § 2401(b).

 6  See also, People's Mojahedin Organization of Iran v. United States Department of State, 182 F.3d 17, 22 (D.C. Cir. 1999) {31kb.html/txt, 31kb.txt}, cert. denied, 529 U.S. 1104 (2000) (“A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.”)

 7  Thus, there are no standards by which the Court can judge decisions of the military to exclude particular groups of non-United States citizens from employment on U.S. {p.22} military bases on foreign soil. For example, a decision to exclude a particular ethnic faction from a base in a region with many ethnic, and perhaps feuding, factions may embrace a multitude of security, diplomatic, and socio-political judgments which must be made by the political branches.

 8  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 {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 {case headnote, not the court’s opinion}; see also 1103-04.

 9  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 United Kingdom and the western powers as a whole. The applicant acknowledges this.

[Regina (Bancoult) at 1106.]

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted Nov. 30 2002. Updated May 16 2008.

http://homepage.ntlworld.com/jksonc/docs/bancoult-d16.html