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Full-text: April 22 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

{Court’s Date Stamp, very faint (no ink)}: Filed April 22 2002 Nancy Mayer Whittington, Clerk U.S. District Court




 

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


Hearing Requested

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

Plaintiffs’ Opposition to Defendant United States of America’s Motion to Dismiss

{p.1}

Plaintiffs file this opposition to Defendant United States of America’s Motion to Dismiss and accompanying Memorandum of Points and Authorities. Plaintiffs seek an order:

1)  Ordering oral argument and an evidentiary hearing;

2)  Denying Defendant’s Motion to Dismiss.

I.
Introduction

On March 21, 2002, Defendant United States of America moved for dismissal of Plaintiffs’ claims on the grounds of sovereign immunity, purported lack of subject matter jurisdiction over a nonjusticiable political question, and Plaintiffs’ alleged lack of standing. With respect to sovereign immunity, Plaintiffs contend the acts complained of are violations of peremptory norms of international law as to which no person or state may claim immunity.

Despite Defendant’s attempts to recast Plaintiffs’ case as a broad attack on U.S. foreign policy, this action does not seek to challenge any international agreement, nor the decision to establish a military base on Diego Garcia. Rather, Plaintiffs seek only a vindication of personal rights and redress for continuing harms. Such redress is not barred by the political question doctrine.

On the issue of standing, Defendant argues Plaintiffs’ injuries cannot be traced fairly to Defendant’s conduct because Defendant does not control physical and legal access to the Chagos Archipelago. The overwhelming historical record, however, demonstrates the United States has effective control of Diego Garcia and continues to prevent Chagossians from returning to the Chagos Archipelago. Moreover, in light of Defendant’s control of access to the Chagos {p.2} Archipelago and of hiring practices on Diego Garcia, a favorable decision likely will redress Plaintiffs’ injuries. Accordingly, Defendant’s Motion to Dismiss should be denied. 1 

II.
Statement of facts

Plaintiffs in this action are the indigenous people of the Chagos Archipelago, their survivors, and their direct descendants. In 1965, Defendant financially contributed to and otherwise aided the United Kingdom in the separation of the Chagos Archipelago from Mauritius. From 1965 to 1973, the United States Government forcefully removed the Chagossians from their homeland and relocated them to the islands of Mauritius and Seychelles. Plaintiffs were stranded with little to no compensation, and were forced to live in abject poverty in the two countries, which at the time suffered high levels of poverty and unemployment. Despite knowledge that the transfer of an indigenous population was illegal, and in the Chagossians’ case unnecessary, Defendant ordered and/or aided and abetted in the implementation of the Chagossians’ removal and relocation.

Defendant concealed from the international community and other branches of the United States Government not only the existence of an indigenous population but also its involvement in the population’s removal. 2  Newspaper articles and congressional hearings in 1975 revealed to the public and Congress the existence of an indigenous Chagossian people and their subsequent removal from the Archipelago. The articles and hearings nonetheless did not reveal the extent of Defendant’s involvement in the illegal treatment of the Chagossians, and Defendant continued to {p.3} conceal its leadership role in participating in the violation of the Chagossians’ fundamental human rights.

A glimpse of the extent of Defendant’s involvement and resulting liability for the population’s removal was revealed for the first time in 2000 during litigation in the United Kingdom. As a result of British litigation, the Chagossians gained access to documents providing details of the events surrounding their removal from their homeland. These documents and the success of the U.K. litigation provided the Chagossians with sufficient information to implicate the Defendant as liable for their harms. Within thirteen months of the release of the documents the Chagossians filed their Complaint in the United States District Court for the District of Columbia. 3 

III.
Argument

A.  Sovereign immunity is no bar to relief

1. United States is not immune from suit in this action

As stated in the Complaint, the United States does not enjoy sovereign immunity from this suit because, inter alia: (1) The acts complained of are violations of peremptory norms of international law as to which no person or state may claim immunity; and (2) Under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-11, the United States has waived the immunity of foreign sovereigns, thereby allowing them to be haled into the courts of the United States under specific exceptions, and principles of comity demand the waiver of sovereign immunity of the United States under those same limited exceptions. See Compl. ¶ 6. {p.4}

Plaintiffs understand this Court is bound by Princz v. United States, 26 F.3d 1166 (D.C. Cir. 1994), and in part present a good faith argument for a change in the law. In Princz, Judge Wald commented in her dissent,

“I believe that [Germany] ... violated jus cogens norms of the law of nations, and that by engaging in such conduct, Germany implicitly waived its immunity from suit within the meaning of § 1605(a)(1) of the FSIA.”Id. at 1178 (Wald, J., dissenting).

Similarly, the acts complained of herein violate jus cogens norms of the law of nations and by engaging in this conduct, the United States has implicitly waived its sovereign immunity. As Judge Wald maintained,

“[b]ecause the Nuremberg Charter’s definition of ‘crimes against humanity’ includes what are now termed jus cogens norms, a state is never entitled to immunity for any act that contravenes a jus cogens norm, regardless of where or against whom that act was perpetrated.” Id. at 1182.

The United States, in helping establish the International Criminal Tribunals for Rwanda and the former Yugoslavia, endorsed entities that soundly reject the idea that official responsibility is limited by immunity claims. These recent acts by the United States further endorse the view from Nuremberg that some crimes are of the sort for which no sovereign can be immune.

2.  Sovereign immunity is no bar to the injunctive and declaratory relief sought

Regardless of the Court’s ruling as to the United States’ amenability to suit for damages, the doctrine of sovereign immunity does not bar the injunctive and declaratory relief sought. For the United States to prevail in its claims to the contrary, the law must permit a government to remove at will an entire population from their homeland, exile them to a distant land, and perpetuate their exile with impunity. This population would have no means to remedy these {p.5} government actions, nor means to halt the continuing violation of their rights.

Such cannot be the law. Plaintiffs at least may seek injunctive and declaratory relief from Defendant United States.

By enacting the 1976 amendments to the Administrative Procedure Act (APA), 5 U.S.C. § 702, Congress provided a specific waiver of United States sovereign immunity for suits “seeking other than money damages.” Section 702 provides, in pertinent part:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States.

5 U.S.C. § 702.

As the United States Court of Appeals for the D.C. Circuit explained, “the 1976 amendments to § 702 of the Administrative Procedure Act, 5. U.S.C. § 702, eliminated the sovereign immunity defense against a U.S. agency or officer acting in an official capacity.” Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984).

As explained in Schnapper v. Foley, 667 F.2d 102, 108 (D.C. Cir. 1981), “section 702 retains the defense of sovereign immunity only when another statute expressly or implicitly forecloses injunctive relief.” Here, there is no express or implicit foreclosure of injunctive relief. Courts have broadly interpreted the APA’s waiver of sovereign immunity as to non-monetary relief. As the D.C. Circuit recently explained, “The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.” Chamber of Commerce of the United States v. Reich {70kb.html}, 74 F.3d 1322, 1328 (D.C. Cir. 1996). {p.6}

While § 702 reviewability may be dependent upon other law, Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988), the Complaint in this action specifically {sic: specifies} that “other law” which provides a legal basis for review. For example, the Complaint prays for relief pursuant to, inter alia, 18 U.S.C. 1091, a federal statute. See Compl. ¶ 3.e. Additional bases pled in the Complaint include, “[l]aws of the United States and the District of Columbia, including but not limited to common law principles of trespass, negligence, intentional infliction of emotional distress and respondeat superior.” Compl. ¶ 3.i. These causes of action provide the necessary predicate for APA’s waiver of sovereign immunity to attach.

The claims asserted in the Complaint also are cognizable because causes of action for violations of international law “arise under” the laws of the United States for purposes of jurisdiction. This, therefore, provides an additional legal basis upon which to attach the APA’s waiver of sovereign immunity. For more than one hundred years it has been settled that federal common law incorporates international law. See The Paquete Habana, 175 U.S. 677, 700 (1900).

3.  Statute of limitations does not foreclose relief

Defendants’ claim that reliance on APA must be barred based on statute of limitations grounds is premature “because statute of limitations issues often depend on contested questions of fact [and] dismissal is appropriate only if the complaint on its face is conclusively time-barred.” Adair v. England {45kb.pdf}, 183 F.Supp.2d 31, 54 (D.D.C. 2002) (quoting Firestone v. Firestone {46kb.html}, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). Furthermore, the D.C. Circuit has consistently stated its hesitancy “to dismiss a complaint on statute of limitations grounds based solely on the face of the {p.7} complaint.” Id. (recognizing that plaintiffs do not need to raise fraudulent concealment in the complaint).

In the instant case, the Complaint on its face is not conclusively time-barred and an analysis of the statute of limitations issues requires consideration of complex and contested questions of fact. In order to determine whether any potentially applicable statutes of limitations have been tolled, the Court will have to analyze complex and disputed facts relating to Defendants’ fraudulent concealment, equitable tolling principals, determination of the existence of a conspiracy, and continuing-tort doctrine. For these reasons the Defendants’ statute of limitations argument is not ripe for determination in a motion to dismiss. Adair {45kb.pdf}, 183 F.Supp.2d at 54.

As to all applicable statute of limitations issues, Plaintiffs hereby incorporate by reference Part III of Plaintiffs’ Consolidated Opposition to Individual Federal Defendants’ Motion to Dismiss and Cross Motion to Strike Certification of Scope of Employment, filed today in this Court {withheld by the court clerk from public inspection}.

4.  The United States’ responsive motion constitutes a denial of administrative remedies

By filing a Motion to Dismiss, the United States has effectively denied any potential administrative claims that arguably lie pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1); 2671-2680. Plaintiffs, therefore, maintain that all administrative remedies are effectively exhausted by Defendant United States’ responsive filing. {p.8}

B.  The political question doctrine does not apply to this action

Despite Defendant’s attempts to recast Plaintiffs’ case as a broad attack on U.S. foreign policy, see Def.’s Mem. Supp. Mot. Dismiss at 16, this action does not seek to challenge the BIOT Agreement, 5  nor the decision to establish a military base on Diego Garcia. As the Complaint clearly states, Plaintiffs do not challenge foreign policy, defense policy, or national security decisions. See Compl. ¶ 2.

Rather, Plaintiffs seek only a vindication of personal rights and redress for continuing harms. See Compl. ¶ 2. Such redress is not barred by the political question doctrine. See Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988); Kadic v. Karadzic {72kb.html/txt, 100 kb rtf}, 70 F.3d 232, 249 (2d Cir. 1995)

(“Although these cases present issues that arise in a politically charged context, that does not transform them into cases involving nonjusticiable political questions”. The doctrine “is one of ‘political questions,’ not one of ‘political cases’.”)

(citing Klinghoffer v. S.N.C. Achille Lauro, 739 F.Supp 854, 860 (S.D.N.Y. 1990) (vacated on other grounds)).

To the contrary, redress of Plaintiffs’ injuries is directly contemplated by established principles of common and customary international law 6 , including: (1) forced relocation; (2) torture; (3) racial discrimination; (4) cruel, inhuman, or degrading treatment; (5) genocide; (6) intentional infliction of emotional distress; (7) negligence; and (8) trespass. See Compl. at {p.9} 59-101.

As the Klinghoffer Court stated in rejecting the claim that the political question doctrine barred relief for a violation of international law:

These are tort claims. They do not involve “policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch,” but familiar questions of responsibility for personal and property injuries. Indeed, there is no issue whether a tort was committed, but merely who committed it. The political question doctrine does not apply.

739 F.Supp at 860 (internal citation omitted).

The United States Court of Appeals for the Second Circuit affirmed this determination, strongly asserting,

“[t]he department to whom this [ordinary tort suit] has been ‘constitutionally committed’ is none other than our own—the Judiciary.”

Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 {copy, justia, altlaw} (2d Cir. 1991). Thus, Plaintiffs’ claims remain paradigmatic issues for resolution by the Judiciary.

Plaintiffs’ case, properly understood, narrowly focuses on Defendant’s conduct in removing the Chagossians from their homeland and the continuing harms that resulted. Three criteria guide the Court in determining whether such a case poses a nonjusticiable political question:

(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?

Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J., concurring) (summarizing Baker v. Carr, 369 U.S. 186, 217 (1962)), cited with approval in Antolok v. United States, 873 F.2d 369, 381 (D.C. Cir. 1989) (recognizing Justice Powell’s formulation as the Court’s appropriate test for determining applicability of the political question doctrine to matters touching foreign affairs).

Application of these criteria to the facts of this case reveals the political question doctrine is not implicated, and Plaintiffs’ claims remain fully justiciable. {p.10}

1.  The text of the Constitution commits questions posed by this case to judicial resolution

Whether a case or controversy that touches foreign policy lies beyond judicial cognizance can only be determined by “a discriminating analysis of the particular question posed.” Baker, 369 U.S. at 211 (emphasis added).

Defendant argues, “[t]he nub of plaintiffs’ position is that the United States violated the rights of Chagossians when it negotiated the BIOT Agreement with Great Britain,” and such negotiations are committed to the Executive Branch. See Def.’s Mem. Supp. Mot. Dismiss at 18.

Defendant’s confused attempt to distill Plaintiffs’ claims to a so-called “nub” is so far from “discriminating” it actually mischaracterizes this case.

The particular questions posed by this action all concern Defendant’s specific conduct in removing the Chagossians from their homeland and the continuing harms that resulted. See Compl. ¶¶ 7-30.

The Complaint does not seek judicial review of “negotiations with foreign nations and recognition of sovereignty.” See Def.’s Mem. Supp. Mot. Dismiss at 18. Plaintiffs do not seek to adjudicate the lawfulness or political wisdom of the United States’ decision to negotiate with the United Kingdom, nor to establish a military base on Diego Garcia. In fact, the Complaint explicitly states Plaintiffs’ were “willing to participate in a peaceful and lawful transition from a plantation economy to a military base-oriented economy.” See Compl. ¶ 1.

Far from challenging the Executive’s foreign policy, Plaintiffs challenge only the legality of Defendant’s implementation of that policy.

Defendant’s argument that this case poses a political question because the “harms [P]laintiffs complain of flowed from negotiations between the United States and Britain,” Def.’s Mem. Supp. Mot. Dismiss at 21, is equally unavailing because a clear distinction exists in the law of this jurisdiction between broad challenges to foreign policy decisions, on the one hand, and challenges to implementation of those decisions on the other. See DKT Memorial Fund, Ltd {p.11} v. Agency for Int’l. Development, 810 F.2d 1236, 1238 (D.C. Cir. 1987) (holding the political question doctrine inapplicable because of the distinction between challenges to foreign policy decision themselves, which are nonjusticiable, and challenges to implementation of foreign policy, which are justiciable); Population Institute v. McPherson, 797 F.2d 1062, 1068-70 (D.C. Cir. 1986) (holding that whereas attacks on foreign policymaking are nonjusticiable, claims alleging non-compliance with the law are justiciable, even though review may have an effect on foreign affairs); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1511-15 {500 kb} (D.C. Cir. 1984) (en banc) (holding Government’s construction and operation of a military training camp on Plaintiff’s private property in Honduras did not present a political question because Plaintiff did not seek to adjudicate the lawfulness of the United States military presence in Honduras, but rather whether the government could run military exercises on his private land when that land had not been lawfully expropriated), vacated on other grounds, 471 U.S. 1113 (1985); accord Lamont v. Woods, 948 F.2d 825, 833 (2d Cir. 1991) (calling the distinction between policy and implementation “critical”).

“While courts are not competent to ... review controversies which ‘revolve around policy choices and value determinations constitutionally committed’ to Congress or the executive branch, it is a court’s duty to determine whether the political branches, in exercising their powers, have ‘chosen a constitutionally permissible means of implementing that power.’”

Planned Parenthood Fed’n, Inc. v. Agency for Int’l. Development, 838 F.2d 649, 655-656 (2d Cir. 1988).

Because Defendant’s conduct in implementing the BIOT Agreement is not itself an expression of foreign policy, Plaintiffs’ challenge to the legality of that conduct does not present a nonjusticiable political question. Id. at 656 (concluding plaintiffs’ challenge to the legality of the method of implementation did not present a nonjusticiable political question {p.12} because the Government’s method of implementing the policy was not itself an expression of foreign policy), construed in Lamont, 948 F.2d at 832.

Moreover, the lack of any significant history of the political branches managing the issues surrounding the Chagossian community, see discussion infra Part III.B.3.b, suggests adjudication of Plaintiffs’ claims will not involve judicial usurpation of the political branches’ constitutional powers to formulate foreign policy. See Powell v. McCormack, 395 U.S. 486, 518 (1969) (stating nonjusticiability of political questions is primarily a function of the constitutional separation of powers); Baker, 369 U.S. at 210 (same).

Where, as here, resolution by the courts does not usurp the province of the political branches, the Judiciary will not shirk the responsibility of adjudicating cases merely because the case implicates foreign policy. See Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986). As the Supreme Court clearly stated,

“it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”

Baker, 369 U.S. at 211.

Indeed, courts historically have decided cases with foreign and defense policy contexts. See, e.g., Japan Whaling, 478 U.S. at 229-30 (unanimously rejecting Government’s argument that the Court should not review Secretary of Commerce’s decision refusing to certify that Japan’s whaling practices diminished the effectiveness of international conservation program); Dames & Moore v. Regan, 453 U.S. 654 (1981) (upholding presidential order to assign private parties with claims against Iran to U.S.-Iran claims tribunal); Sumitomo Shoji America v. Avagliano, 457 U.S. 176 (1982) (construing a treaty to hold a Japanese subsidiary subject to Title VII employment discrimination suits); The Paquete Habana, 175 U.S. 677 (1900) (construing customary international law to hold coast fishing vessels are exempt from capture as prize of war).

Thus, this Court remains the {p.13} proper branch of government for review of the instant action and for the remediation of Plaintiffs’ harms. 7 

2.  Resolution of this case requires the court exercise its own judicial expertise

It cannot be said that resolution of this case will require the Court to move outside its areas of expertise. Because the common law of tort and international customary law provide clear and well-settled rules on which the Court can rely, this case does not require the Court to render a decision in the absence of judicially discoverable and manageable standards. See Baker, 369 U.S. at 217.

On the basis of the Complaint, adjudication of Defendant’s conduct in removing and continuing to exclude the Chagossians will require interpretation of the common law and of customary international law as evidenced, in part, by several treaties to which Plaintiffs’ Complaint directs the Court’s attention. 8  ¶

These interpretative tasks form the core of judicial expertise. See Powell, 395 U.S. at 548-549 (holding petitioner’s claims justiciable because interpretation of the law “falls within the traditional role accorded courts”); Arellano, 745 F.2d at 1513 (finding interpretation of the Constitution falls squarely within judicial expertise); Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425, 452 (D.C. Cir. 1982) (same). 9  {p.14}

3.  Prudential considerations counsel for, and not against, judicial intervention

Baker identifies four prudential considerations that may bar adjudication of a claim:

[T]he impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217. None of these concerns arises from Plaintiffs’ Complaint.

a.  The court may adjudicate plaintiffs’ claims without making an initial policy determination of a kind clearly for non-judicial discretion

Plaintiffs do not seek judicial monitoring of foreign policy in the Indian Ocean. Arellano, 745 F.2d at 1513 (discussing judicial monitoring as a central concern of Baker’s prudential considerations).

Plaintiffs’ claims do not require the Court to weigh “the security interests of the United States and its allies against the claimed interests of the plaintiffs in returning to the islands,” see Def.’s Mem. Supp. Mot Dismiss at 24, because, contrary to Defendant’s {p.15} mischaracterization, Plaintiffs do not seek a unilateral right to return to and “occupy” Diego Garcia. See Def.’s Mem. Supp. Mot. Dismiss at 24.

Rather, Plaintiffs simply ask to be treated equally with other civilians who successfully seek access to and employment on the Chagos Archipelago at large. While non-Chagossians are permitted access to Chagos 10  and hired 11  for {p.16} employment on Diego Garcia, Defendants systematically exclude the Chagossians from the entire archipelago. See Pl.’s Mem. Supp. Mot. Prelim. Inj. at 2-3.

Plaintiffs’ prayer for relief asks for “an immediate return to Chagos,” see Compl. ¶ 105, on the basis of “equal access” to the archipelago and “equal access to employment opportunities on Diego Garcia.” See Compl. ¶ 106. As such, Plaintiffs’ action requests nothing more than that which is already granted to other civilians, and no further evaluation of security concerns is called for.

b.  The court may resolve plaintiffs’ claims without expressing a lack of respect for a coordinate branch or a prior political decision because no prior political decision has been rendered

As evidence of a political decision already made, Defendant refers the Court’s attention to a Washington Post editorial, which was appended to the 1975 congressional hearings on Diego Garcia. See Def.’s Mem. Supp. Mot. Dismiss at 27-28. Based upon Congress’ awareness of this editorial, Defendant claims Congress fully aired the issue of “whether the United States’ base on Diego Garcia, and the build up of that base was in the United States’ best interests.” See Def.’s Mem. Supp. Mot. Dismiss at 27-28.

Even assuming arguendo that Congress fully aired such issues during its 1975 hearings, Defendant’s point nonetheless is misplaced. This case does not ask the Court to decide whether the military base on Diego Garcia remains in the United States’ best interests. Plaintiffs do not challenge the decision of the United States President or Congress to build, expand, or finance a military base on Diego Garcia. See Compl. at ¶ 2.

Rather, Plaintiffs seek relief for Defendant’s conduct in implementing the BIOT Agreement— {p.17} conduct that resulted in devastating property damage, personal injury, 12  arbitrary separation of families, 13  and even death. 14 

Moreover, a close inspection of the congressional hearings of 1975 reveals Congress never debated the circumstances surrounding the manner in which Plaintiffs were exported from their homes, much less came to any decision on the matter. The hearing record shows that following a direct question from Subcommittee Chairman Hamilton on whether the Chagossians were forcibly removed, Defendant Churchill responded,

“We have no evidence that any force was used. We have quite a bit of evidence that there was no force used.”

Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants {at p.67} {575 kb}, Hearings Before the Special Subcommittee on International Relations, House of Representatives, 94th Cong. 67 (1975) (hereinafter “Hearings”).

Chairman Hamilton then asked {at p.67},

“Did [the Chagossians] go willingly?”

to which Defendant Churchill answered,

“Some of them were reluctant to leave, especially the older people. But they went willingly.”

Id. Pressing further on the issue of a lack of congressional involvement with respect to the Chagossian removal, Chairman Hamilton inquired, {at 70}

“Has Congress at any time appropriated money for the Diego Garcians on a line item basis?”

to which Defendant Churchill replied,

“For the inhabitants? No, sir.”

This meager exchange represents the depth of Congress’ consideration of the specific facts giving rise to Plaintiffs’ Complaint. Thus, there was no congressional airing of the specific circumstances that {p.18} give rise to Plaintiffs’ claims.

Accordingly, this Court’s independent resolution of Plaintiffs’ claims would not express a lack of respect for a coordinate branch of government, and no political decision has been made that now requires this Court’s unquestioning adherence.

c.  There is no potential for embarrassment from multifarious pronouncements by various departments on one question

Defendant argues the United States “would be embarrassed were the Court to reverse over twenty-five years of political, diplomatic and defensive policy.” See Def.’s Mem. Supp. Mot. Dismiss at 29.

This statement is true as far as it is grandly over-sweeping. However, Plaintiffs ask for no such revolutionary change in U.S. political, diplomatic and defensive policy. Plaintiffs’ case, properly understood, narrowly focuses on Defendant’s specific conduct in removing and excluding the Chagossians from the Chagos Archipelago.

Further obscuring this fact, Defendant generously quotes then Judge Scalia in Sanchez-Espinoza, 770 F.2d at 209, who cited Baker for the proposition that multifarious pronouncements from various branches of government on any one question can engender embarrassment. See Def.’s Mem. Supp. Mot. Dismiss at 28.

Yet Judge Scalia’s use of Baker was purely analogical. The Court cited Baker by analogy to support its determination that it was inappropriate under Bivens to fashion a damages remedy for violation of constitutional rights because “special factors counseling hesitation” were present—namely, potential embarrassment. Sanchez-Espinoza, 770 F.2d at 208 (citing Chappell v. Wallace, 462 U.S. 296, 298 (1983)).

The Sanchez-Espinoza Court was not concerned with the merits of the case, but rather “who should decide whether such a remedy should be provided.” Sanchez-Espinoza, 770 F.2d at 208.

It is hard to see how Defendant can claim Judge Scalia’s words have “particular relevance” to the supposed political question in this case, see Def.’s {p.19} Mem. Supp. Mot. Dismiss at 28, when the words Defendant quotes fall completely outside any form of political question analysis.

Defendant’s reliance on Chaser Shipping Corporation v. United States, 649 F.Supp. 736, 740 (S.D.N.Y. 1986), also is unavailing. Chaser concerned the potential for embarrassment arising from a judicial inquiry into the Executive’s involvement in laying mines in Nicaraguan harbors, an action which the Executive publicly and explicitly disavowed. Id. at 740.

“[T]he White House, the CIA and the State Department all publicly denied that the Government was directly involved in the mining. An inquiry by this Court into these matters, which might result in proving that the prior declarations were erroneous, could indeed be embarrassing to the Government.”

Id. (citing Sanchez-Espinoza, 568 F.2d {sic: F.Supp.} at 600). The stark contrast between the Executive’s public denial of involvement and the Court’s potential finding to the contrary compelled the Court to find the matter a nonjusticiable political question. Id.

The instant facts reveal no such contrast or potential for embarrassment because multifarious pronouncements will not have been issued on the question of the treatment of the Chagossians.

“[T]he key consideration is that, at the end of the day, there will only be one pronouncement on this question.”

McPherson, 797 F.2d at 1070 (rejecting the argument of potential embarrassment arising from the Court’s review of a decision by the administrator of the Agency for International Development to withhold ten million dollars earmarked by Congress for the United Nations Fund for Population Activities.)

4.  Plaintiffs’ claims are paradigmatic issues for resolution by the judiciary

As the United States Court of Appeals for the District of Columbia stated,

“[i]ssues which are not at base sweeping challenges to the Executive’s foreign policy typically are {p.20} adjudicated by the courts because they do not involve judicial usurpation of the Executive’s constitutional powers to manage foreign affairs.”

Arellano, 745 F.2d at 1512; see also Milena Ship Management Co. Ltd. v. Newcomb, 804 F.Supp. 846, 849-850 (E.D. La. 1992) (holding political question doctrine inapplicable because “plaintiffs here have not advanced a comprehensive challenge to the President’s strategy or authority”); cf. Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (dismissing claims by enemy aliens that effectively challenged the propriety of U.S. military presence in China); Crockett v. Reagan, 720 F.2d 1355, 1356-57 (D.C. Cir. 1983) (dismissing challenge to legality of U.S. military aid to El Salvador) {affirming 558 F. Supp 893 (D.D.C. Oct. 4 1982, judge Joyce Hens Green)} {35kb.pdf}; Greenham, 755 F.2d at 37 (dismissing challenge to executive decisions regarding deployment of cruise missiles).

Plaintiffs’ claims are not sweeping challenges to the Executive’s foreign policy, but rather judicially manageable claims sounding in tort and recognized under common and international customary law.

The political question doctrine is a “tempting refuge” from adjudication of difficult claims because the doctrine’s shifting and uncertain underpinnings make it subject to indiscriminate and overbroad application. Arellano, 745 F.2d at 1514. Defendants ask for precisely this form of overbroad application simply because the location in which Plaintiffs’ causes of action arose is now an important political and military installation. This is not sufficient cause to dismiss Plaintiffs’ claims.

Indeed, this jurisdiction already recognized the interests of justice served by adjudicating Plaintiffs’ claims:

“[t]he Executive’s power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights.”

Arellano, 745 F.2d 1515. The Defendant, by its own admission agrees. The United States Government itself has taken the position that: {p.21}

[T]he protection of fundamental human rights is not committed exclusively to the political branches of government.... The courts are properly confined to determining whether an individual has suffered a denial of rights guaranteed him as an individual by customary international law. Accordingly, before entertaining a suit alleging a violation of human rights, a court must first conclude that there is a consensus in the international community that the right is protected and that there is a widely shared understanding of the scope of this protection. When these conditions have been satisfied, there is little danger that judicial enforcement will impair our foreign policy efforts. To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.

Brief of United States as Amicus Curiae {at pages 22-23: 115kb.html}, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (reprinted in 12 Hastings Int’l & Comp. L. Rev. 34 (1988) and 19 I.L.M. 585).

Plaintiffs fully concur in Defendants’ position that recognizing private causes of action for human rights violations will not impair our foreign policy, but rather bolster its credibility.

C.  Plaintiffs have standing to seek injunctive relief

To establish standing for an injunction, Plaintiff must show (1) injury in fact, (2) that the injury “fairly can be traced to the challenged action,” and (3) that the injury “is fairly likely to be redressed by a favorable decision.” Pharmaceutical Research and Manufacturers of America v. United States, 135 F.Supp.2d 1, 7 (D.D.C.), rev’d on other grounds {35kb.html}, 251 F.3d 219 (D.C. Cir. 2001), quoting Valley Forge Christian College v. American United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

Plaintiffs have suffered concrete, particularized and actual injuries that are fairly traceable to the conduct of Defendant, and a favorable decision is fairly likely to redress these injuries. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Thus the Chagossians have standing to seek injunctive relief. 15  {p.22}

1.  Plaintiffs’ injuries are fairly traceable to the conduct of defendant

Defendant argues Plaintiffs’ injuries cannot be traced fairly to Defendant’s conduct because Defendant does not control physical and legal access to the Chagos Archipelago. See Def.’s Mem. Supp. Mot. Dismiss at 30.

The overwhelming historical record, however, demonstrates the United States has effective control of Diego Garcia and continues to prevent Chagossians from returning to the Chagos Archipelago.

a.  Defendant removed plaintiffs from their land

The causal connection between Defendant’s conduct and Plaintiffs’ injuries is not merely speculative. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Thus, this Court need not make any “inferences and assumptions in order to connect the alleged injury with the challenged action.” Pharmaceutical Research, 135 F.Supp.2d at 8 (D.D.C.), citing National Maritime Union v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C. Cir. 1987).

The historical record 16  reveals that in February 1964, the United States and the United Kingdom conducted the “Anglo-American Survey,” which resulted in the decision to remove the indigenous population from Chagos. See Compl. ¶ 17. The survey concluded that “[a]cquisition of Diego Garcia for defense purposes will imply the displacement of the whole of the existing population of the island.” See Compl. ¶ 17.

To facilitate international acceptance of this conclusion, both governments purposely mischaracterized the Chagossians as a population entirely composed of seasonal contract workers from Mauritius and Seychelles, whose contracts {p.23} merely were cancelled. 17  See Compl. ¶ 20. Both governments then removed the Chagossians from their homes and community and forcefully exported them to Mauritius and Seychelles. See Compl. ¶¶ 22, 23.

Defendant mischaracterizes its role in the forced relocation of Chagossians from the archipelago by failing to disclose Defendant’s crucial knowledge of and active participation in its execution. Indeed, the design and implementation of the forced displacement was a joint venture between the United States and United Kingdom.

Accordingly, Plaintiffs’ injuries arising from Defendant’s implementation of Plaintiff’s forced relocation are fairly traceable to the conduct of Defendant.

b.  Defendant controls access to the Chagos Archipelago and systematically excludes Chagossians

Defendant emphatically advocates absolute U.S. control over the facility on Diego Garcia; presents an affidavit emphasizing the need for “operational security (OPSEC)” decisions made by the United States, see Def.’s Mem. Opp’n Prelim. Inj. at 4; and yet, claims that another nation – the United Kingdom – essentially controls Diego Garcia. See Def.’s Mem. Supp. Mot. Dismiss at 30.

While it is true Defendant has used Diego Garcia extensively for decades in several large military operations, including Operation Desert Shield/Desert Storm and most recently in Operation Enduring Freedom, see Def.’s Mem. Supp. Mot. Dismiss at 1, this fact actually undermines Defendant’s argument that the United Kingdom maintains control of Chagos, and Diego Garcia specifically. Surely the United States would not conduct such sensitive operations from a military base over which it has no direct control. But that is what Defendant would have this Court believe. {p.24}

To the contrary, the United States has been the main proponent of BIOT and the military installation on Diego Garcia since the initial stages of development. The United Kingdom formed BIOT at the urging of the United States for the very purpose of allowing the United States to develop a military installation. See Pls.’ Prelim. Inj. Reply Attach. 1 ¶ 4. British participation in the development of Diego Garcia was merely a ploy to encourage the U.S. Congress to provide funding for the facilities. See id. ¶ 3. To that end, the United States told British officials in 1968 “[the United States] recognize[s] that there is little likelihood of British financial participation in the development [of a U.S. facility on Diego Garcia]; that the facility would be under a British flag; and hope that a British Liaison Officer would be stationed on the island (for administrative purposes).” Id. ¶¶ 2, 7 (emphasis added).

Moreover, the United Kingdom did not even consider Diego Garcia to be of any particular strategic importance at the time the BIOT Agreement was made. See id. ¶ 5. So low was British interest that British ships and aircraft would actually have to pay the United States for use of the facilities on “an ‘as-used’ basis.” See Pls.’ Prelim. Inj. Reply Attach. 1, Annex ¶ 4.

This state of relative interests in control has seemingly remained the same. As of 1995, the Central Intelligence Agency World Fact Book indicates there are 1,700 military personnel and 1,500 civilian contractors on Diego Garcia. Central Intelligence Agency, The World Fact Book 2001 71 (2001). Of these 3,200 people, only 50 are U.K. personnel. See U.S. Navy, Welcome Aboard, at http://www.dg. navy.mil/welcome/welcome.htm (visited March 2, 2002), reprinted Pls.’ Prelim. Inj. Reply Attach. 2, ¶ 7.

To gain entry, these personnel – and all civilians – must obtain security clearance from the U.S. Naval Facility. See Navy Support Facility Diego Garcia, General Information, at http://www.dg. navy.mil/general_info/frameset.htm (visited April 21, 2002). {p.25}

Thus, the bare public record – even thus far undeveloped by proper discovery – reveals the United States has effectively exercised control of Diego Garcia since its inception.

Defendant nonetheless argues it has no control over the Chagos Archipelago because the BIOT Agreement establishing the base on Diego Garcia explicitly states “the United States may not exercise authority over British citizens in the BIOT.” See Def.’s Mem. Supp. Mot. Dismiss at 30-31 (emphasis added). In fact, the portion of the BIOT Agreement that Defendant quotes from states U.S. military authorities shall not exercise “jurisdiction,” not “authority.” BIOT Agreement Annex II (1)(d); see also Def.’s Mem. Supp. Mot. Dismiss at 31.

In any event, the BIOT Agreement, properly construed, concerns the rightful exercise of British jurisdiction over legal claims arising within the territory of the BIOT, and has nothing to do with access to the island or employment practices, which remain the sources of Plaintiffs’ continuing harms and under the control of Defendant. The jurisdiction to which the BIOT Agreement refers is that “with respect to offenses committed within the Territory and punishable by the law in force there.” BIOT Agreement Annex II (1)(a)(ii). Offenses committed within BIOT are, therefore, subject to British law. Although Defendant does not have this type of jurisdiction over civilian employees on Diego Garcia, Defendant does control access to the archipelago and over the employment practices of its contractors and subcontractors.

Defendant’s control of the Chagos Archipelago has manifested itself to the exclusion of the Chagossians. While Defendant does not object to the ports of call occasioned by hundreds of non-Chagossian yachtsmen each year – each of whom pays BIOT port fees with U.S. dollars – Chagossians are routinely expelled from the archipelago. See Pls.’ Prelim. Inj. Reply, Attach. 3, 4, 5; see also Pls.’ Mem. Supp. Prelim. Inj. at Attach 2, Jaffa Aff. ¶ 7; Pls.’ Mem. Supp. Prelim. Inj. at Attach 1, Florian Aff. ¶ 7: {p.26}

Pleasure boaters and non-Chagossian fishermen are allowed on shores of the Chagos islands, while Chagossians have been threatened and harassed by BIOT patrols acting on behalf of the United States and United Kingdom Governments. See e.g., Florian Aff. Attach. 1 ¶¶ 6, 10; Jaffa Aff. Attach. 2 ¶¶ 6, 10.

The Chagossian fishermen have been forced off Chagos islands and forbidden to set foot on any of the islands in the future under threat of fines of approximately $290,000. See e.g., Florian Aff. Attach. 1 ¶ 6; Jaffa Aff. Attach. 2 ¶ 6.

On one occasion, a [British] official used racist language to reiterate these threats, stating to several fishermen that no Chagossian would ever be allowed to set foot on any of the Chagos islands. See e.g., Florian Aff. Attach. 1 ¶ 10; Jaffa Aff. Attach. 2 ¶ 10.

The Captains of various fishing vessels that employ Chagossians have also been threatened with fines and with having their licenses revoked. See e.g., Florian Aff. Attach. 1 ¶ 11; Jaffa Aff. Attach. 2 ¶ 11.

Consequently, these Captains have stated that any Chagossian employee who gets off the fishing vessel on any of the Chagos islands will be dismissed from employment. See e.g., Florian Aff. Attach. 1 ¶ 11; Jaffa Aff. Attach. 2 ¶ 11.

Pls.’ Mem. Supp. Prelim. Inj. ¶ 6.

Thus, the Chagossians’ exclusion from the Chagos Archipelago is fairly traceable to Defendant’s conduct.

c.  Defendant orders and implements discriminatory hiring practices

Defendant excludes Plaintiffs on the basis of their Chagossian ethnicity, not only from general access to the archipelago, but from employment on Diego Garcia as well. These discriminatory hiring practices cause Chagossians to suffer economic, psychological and emotional harms associated with discrimination. These harms remain fairly traceable to Defendant’s conduct.

The United States, and not the United Kingdom, exercises control of hiring practices on Diego Garcia by contracting and subcontracting work for their operations. The BIOT Agreement effectively gives Defendant the authority to “freely select” its contractors and its personnel. BIOT Agreement at 7(a). The Agreement also specifically demands Defendant employ local Mauritian and Seychellois labor. Id.

Captain Lucarelli’s declaration clarifies that potential {p.27} employment opportunities on Diego Garcia include custodial services, facilities and ground maintenance and solid waste collection and disposal. See Lucarelli Decl. ¶¶ 15, 19.

Although Chagossians are equally qualified for these positions on Diego Garcia, Defendant denies Plaintiffs equal opportunity to compete by implementing discriminatory hiring practices. See Mem. Supp. Pls.’ Mot Prelim. Inj. at Attach. 4, Emilien Aff. ¶¶ 10, 12-14.

Thus Plaintiffs’ lack of equal employment opportunities can fairly be traced to Defendant’s conduct.

2.  A favorable decision likely will redress plaintiffs’ injuries

In light of Defendant’s control of access to the Chagos Archipelago and of hiring practices on Diego Garcia, Defendant is in a position to remedy Plaintiffs’ harms. Plaintiffs simply request access to the Chagos Archipelago consistent with and equal to the access granted to non-Chagossian civilians. A favorable decision may supply such remedies and likely will redress Plaintiffs’ injuries.

Plaintiffs’ case presents no greater issue of redressability than that already resolved by the Courts in the Bakke line of cases dealing with affirmative action. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), a medical school candidate was denied the ability to compete for admission because of his race. The Court found petitioner had standing because a favorable decision allowing petitioner to compete equally with qualified applicants was likely to redress the harm caused by the racially discriminatory admission practices of the university. Bakke, 438 U.S. at 281 n.14; see also Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 666 n.5 (1993) (identifying the injury as inability to compete equally for state contracts as an injury redressable {p.28} by a judicial decree directing the city to discontinue its program).

Similarly, the employment discrimination here is likely to be redressed by a favorable decision.

IV.
Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss should be denied. Alternatively, Plaintiffs request a hearing on issues raised in Defendant’s Motion to Dismiss before a final decision on Defendant’s Motion to Dismiss is made.


Signature: Michael E. Tigar

Respectfully submitted: April 22, 2002


{Signature}

Michael E. Tigar
D.C. Bar Identification # 103762
Professor of Law
American University
Washington College of Law
4801 Massachusetts Ave., NW
Suite 460
Washington, D.C. 20016
(202) 274-4088


Attorney for plaintiffs {p.29}

______________________

Certificate of Service

I hereby certify that on April 22, 2002 I served a true copy of the foregoing Memorandum of Points and Authorities in Opposition to Defendant United States of America’s Motion to Dismiss:

By facsimile and by first class mail, postage pre-paid, addressed to Defendants’ counsel as follows:

Richard Montague
Department of Justice
Civil Division
1425 New York Ave., N.W.
Suite 8122
Washington, DC 20005

By first class mail, postage pre-paid, addressed to Defendant’s counsel as follows:

Elaine Lacy
Torts Branch
Civil Division
U.S. DOJ
P.O. Box 888
Washington, DC 20044

By first class mail, postage pre-paid, addressed to Defendant’s counsel as follows:

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

By first class mail, postage pre-paid, addressed to Defendant’s counsel as follows:

Cynthia Andreason
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave. N.W.
Suite 1200
Washington, DC 20009

Signature: Daniel Jawor

 

{Signature}

Daniel Jawor

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.9, n.11, n.15, n.17CJHjr

 1  Defendant United States of America and the individual federal defendants have filed separate motions to dismiss. Although substantially similar, Plaintiffs felt constrained to respond directly to each motion filed. Plaintiffs’ responses have been tailored to the extent necessary to address variations in Defendants’ respective arguments and factual allegations. To the extent possible, however, Plaintiffs ask that their responses be read in tandem.

 2  The Washington Post article cited by Defendant recognizes the “highly effective coverup, facilitated no doubt by the fact that the Diego Garcians in their poverty and their remoteness had scant resources.” See Def.’s Mem. Supp. Mot. Dismiss at 5.

 3  Documents relating to the British claims were released in August 1999. Complaint filed December 20, 2001.

 4  {Note:  Footnote 4 repeats footnote 3 and is not referenced in the text – apparently, an unintended footnote}.

 5  Exchange of Notes on Availability of Certain Indian Ocean Islands for Defense Purposes, Dec. 30, 1966, U.S.-U.K., 18 U.S.T. 28 (hereinafter “BIOT Agreement”).

 6  In support of those claims arising under customary international law, Plaintiffs’ Complaint directs the Court’s attention to several laws, agreements, resolutions and treaties, which register the prevailing norms of customary international law, including: ¶

(1) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; 23 I.L.M. 1027 (entered into force in the United States Nov. 20, 1994); ¶

1465 U.N.T.S. 85 (Dec. 10 1984, June 26 1987) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 100-20; President transmitted: May 20 1988 (PPPUS, 1988-89) {SuDoc: AE 2.114:988-89/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Treaty Document No. 100-20 (May 23 1988) {SuDoc: Y 1.1/4:100-20, Serial Set: 13857, CIS: 88 S385-11}; Senate Hearing 101-718 (January 30 1990) {SuDoc: Y 4.F 76/2:S.Hrg.101-718, CIS: 90 S381-15, LCCN: 90601736}; Senate Executive Report No. 101-30 (August 30 1990) {SuDoc: Y 1.1/6:101-30, Serial Set: 13983, CIS: 90 S384-9}; Senate consent: Oct. 27 1990, 136 Cong. Rec. S17486-17492 (daily edition 136/150) {SuDoc: X/A.101/2:136/150, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Oct. 21 1994, effective Nov. 20 1994, 1830 U.N.T.S. 320, accord T.I.F. {202kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604}, contra, Nov. 10 1994, 22 C.F.R. § 95.1(a) {5kb.txt; 32kb.pdf, DL}CJHjr


(2) Convention on the Elimination of all Forms of Racial Discrimination, 660 U.N.T.S. 195 (March 7, 1966); ¶


SuWho?
SuDoc
Serial Set
CIS   DL

660 U.N.T.S. 195 (March 7 1966, Jan. 4 1969) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-18; President transmitted: February 23 1978 (1978 PPPUS 395-396 {html}) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Executive Document No. 95/2-C (Feb. 23 1978) {SuDoc: Y 1.95/2:C-F/corr, Serial Set: 13205-?, CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 103-659 (May 11 1994) {SuDoc: Y 4.F 76/2:S.Hrg.103-659, CIS: 94 S381-23, LCCN: 94231890); Senate Executive Report No. 103-29 (June 2 1994) {SuDoc: Y 1.1/6:103-29, Serial Set: 14230, CIS: 94 S384-3}; Senate consent: June 24 1994, 140 Cong. Rec. S7634 (daily edition 140/82) {9kb.txt} {SuDoc: X/A.103/2:140/82, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Oct. 21 1994, effective Nov. 20 1994, 1830 U.N.T.S. 284, accord T.I.F. {134kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


(3) International Covenant on Civil and Political Rights, G.A. Res. 2220A (xxi), 21 U.N. Doc., GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966); ¶

999 U.N.T.S. 171 (Dec. 16 1966, March 23 1976) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-20; President transmitted: February 23 1978 (1978 PPPUS 395-396 {html}) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Executive Document No. 95/2-E (Feb. 23 1978) {SuDoc: Y 1.95/2:C-F/corr, Serial Set: 13205-?, CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 102-478 (Nov. 21 1991) {SuDoc: Y 4.F 76/2:S.Hrg.102-478, CIS: 92 S381-25, LCCN: 92191239, GPOCat, LL: paper, microfiche); Senate Executive Report No. 102-23 (March 24 1992) {63kb.txt, 302kb.pdf} {SuDoc: Y 1.1/6:102-23, Serial Set: 14102, CIS: 92 S384-1, GPOCat, LL: paper, microfiche}; Senate consent: April 2 1992, 138 Cong. Rec. S4781-4784 (daily edition 138/49) {SuDoc: X/A.102/2:138/49, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: June 8 1992, effective Sept. 8 1992, 1676 U.N.T.S. 543, accord T.I.F. {185kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


(4) Convention on Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277; ¶

78 U.N.T.S. 277 (Dec. 9 1948, Jan. 12 1951) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 81-15; President transmitted: June 16 1949 (PPPUS, 1949) {SuDoc: GS 4.113:949, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Hearing Jan. 23-25, Feb. 9, 1950 {SuDoc: Y 4.F 76/2:G 28/950, CIS: Group 3 (81) S933-10, LCCN: 50060591}; Senate Hearing April 24, 27, May 22, 1970 {SuDoc: Y 4.F 76/2:G 28/970, CIS: 70 S381-13, LCCN: 71608056}; Senate Hearing March 10 1971 {SuDoc: Y 4.F 76/2:G 28/971, CIS: 71 S381-11, LCCN: 76611849}; Senate Hearing May 24, 26 1977 {SuDoc: Y 4.F 76/2:G 28/977, CIS: 77 S381-41, LCCN: 77603283}; Senate Hearing December 3 1981 {SuDoc: Y 4.F 76/2:G 28/981, CIS: 82 S381-11, LCCN: 82601377}; Senate Hearing 98-962 (Sept. 12 1984) {SuDoc: Y 4.F 76/2:S.Hrg.98-962, CIS: 85 S381-4, LCCN: 84603643}; Senate Hearing 99-259 (March 5 1985) {SuDoc: Y 4.F 76/2:S.Hrg.99-259, CIS: 86 S381-2, LCCN: 85603348}; Senate Executive Report No. 99-2 (July 18 1985) {SuDoc: Y 1.1/6:99-2, Serial Set: 13626, CIS: 85 S384-1}, reprinted in 28 I.L.M. 760 (1989) {Lexis, WestLaw}; Senate consent: February 19 1986, 132 Cong. Rec. S1355-1401 (daily edition 132/??) {SuDoc: X/A.99/2:132/??, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Nov. 25 1988, effective Feb. 23 1989, 1518 U.N.T.S. 339, accord T.I.F. {179kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


(5) 18 U.S.C. 1091; ¶

(6) United Nations Charter, 59 Stat. 1031, 3 Bevans 1153 (1945); and ¶

(7) Universal Declaration of Human Rights. (Compl. at ¶ 3.)

 7  In its discussion of the first Baker factor, Defendant pays considerable attention to the supposed notion that resolution of Plaintiffs’ claims requires the Court to “order the United States to seek a change in Britain’s behavior toward [P]laintiffs.” Defendant relies on Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) and Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988), for the proposition that the “Court has no authority to direct the Executive Branch in diplomatic discussion with sovereign nations.” While Plaintiffs do not doubt the veracity of this argument, we fail to see its relevance. While the plaintiffs in Oetjen and Smith sought the affirmative action of the Government to conduct foreign diplomacy, see Oetjen, 246 U.S. at 302, Smith, 844 F.2d at 200, Plaintiffs here simply request that Defendants provide relief to Plaintiffs for Defendant’s own unlawful conduct, both in the implementation and perpetuation of the removal process and in the course of on-going racial discrimination pursuant to Defendant’s own hiring policy. See Compl. ¶ 26 (“Defendants ... order and implement policies prohibiting the hiring of anyone of Chagossian descent for civilian positions on Diego Garcia.”).

 8  See supra note 9 {sic: note 6}.

 9  Moreover, the case law that Defendant cites fails to show a lack of judicially discoverable and manageable standards. See Def.’s Mem. Supp. Mot. Dismiss at 23. While the trial court in Sanchez-Espinoza v. Reagan, 568 {p.14} F.Supp. 596 (D.D.C. 1983), found the political question doctrine barred plaintiffs’ international and constitutional claims, the decision was affirmed on the distinct ground that fashioning a damages remedy for a violation of the U.S. Constitution was inappropriate under Bivens. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985). Defendant’s reliance on Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991), and Aktepe v. United States, 105 F.3d 1400 (11th Cir. 1997) {16kb.html, 22kb.pdf}, is misplaced because each of these cases addressed the discrete question of whether military action taken in full conformity with a policy decision or established protocol may nonetheless constitute negligence. See Aktepe, 105 F.3d 1400 (action challenging the use of a U.S. missile as negligent); Tiffany, 931 F.2d 271 (action challenging Air Force pilot’s allegedly negligent acts undertaken in accordance with established flight protocol). These cases are not controlling because Defendant’s conduct was undertaken outside any specific military policy or established protocol, and thus the Court would not undertake a review of such policy or protocol. The remaining cases upon which Defendant relies are distinguishable from the instant case because each precedent finds the absence of a reviewing standard as a direct result of the fact that the plaintiffs challenged a foreign policy or military policy decision itself, rather than specific implementing conduct. See Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34, 37 (2d Cir. 1985) (challenge to the foreign policy decision regarding the deployment of cruise missiles); DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir. 1973) (finding lack of standards to assess foreign policy decision to mine harbors of North Vietnam); Rappenecker v. United States, 509 F.Supp. 1024 (N.D. Cal. 1980) (challenge to foreign policy decision both to undertake a rescue operation and to use military force to effect the rescue).

 10  Plaintiffs direct the Court’s attention to the Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction:

Chagossians employed on fishing vessels often go on fishing expeditions and are at sea for weeks or even months on end. See e.g., Florian Aff. Attach. 1 ¶ 5; Jaffa Aff. Attach. 2 ¶ 5. During these long trips, fishermen usually disembark on islands near the boat for breaks. See e.g., Florian Aff. Attach. 1 ¶¶ 6, 8; Jaffa Aff. Attach. 2 ¶¶ 6, 8. While on lawful expeditions in the waters of the Chagos Archipelago, the Chagossian fishermen have regularly encountered yachts and other pleasure boats and have observed the occupants of these boats on the shores of various islands in Chagos. See e.g., Florian Aff. Attach. 1 ¶ 7; Jaffa Aff. Attach. 2 ¶ 7. Books for Yachters discuss Chagos as an ideal vacation spot and a tour group currently sailing around the world is offering tourists a three-month stay in Chagos. See Jimmy Cornell, World Cruising Routes (4th ed. 1998); Web page of the sailboat Minuit, Attach. 4, http://www. minuit.net. Pleasure boaters and non-Chagossian fishermen are allowed on shores of the Chagos islands, while Chagossians have been threatened and harassed by BIOT patrols acting on behalf of the United States and United Kingdom Governments. See e.g., Florian Aff. Attach. 1 ¶¶ 6, 10; Jaffa Aff. Attach. 2 ¶¶ 6, 10. The Chagossian fishermen have been forced off Chagos islands and forbidden to set foot on any of the islands in the future under threat of fines of approximately $290,000. See e.g., Florian Aff. Attach. 1 ¶ 6; Jaffa Aff. Attach. 2 ¶ 6. On one occasion, a UK official used racist language to reiterate these threats, stating to several fishermen that no Chagossian would ever be allowed to set foot on any of the Chagos islands. See e.g., Florian Aff. Attach. 1 ¶ 10; Jaffa Aff. Attach. 2 ¶ 10. The Captains of various fishing vessels that employ Chagossians have also been threatened with fines and with having their licenses revoked. See e.g., Florian Aff. Attach. 1 ¶ 11; Jaffa Aff. Attach. 2 ¶ 11. Consequently, these Captains have stated that any Chagossian employee who gets off the fishing vessel on any of the Chagos islands will be dismissed from employment. See e.g., Florian Aff. Attach. 1 ¶ 11; Jaffa Aff. Attach. 2 ¶ 11.

Pl’s Mem. Supp. Mot. Prelim. Inj. ¶ 6.

 11  Plaintiffs direct the Court’s attention to the Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction:

Defendants’ discriminatory hiring practices also continuously deny the Chagossians access to Chagos. See Bancoult Aff. Attach. 3 ¶ 7. At least 540 Chagossians have applied for available jobs on the U.S. military base in Diego Garcia, some applying multiple times. See Compl. ¶ 26; Bancoult Aff. Attach. 3 ¶ 7. DCDM has advertised jobs on behalf of the United States Government, including positions for stonemasons, electricians, divers and mechanics. See Compl. ¶ 49. Chagossian applicants have been qualified in the skills required for the positions, yet all applicants known to be native-bom Chagossians were summarily rejected. See Bancoult Aff. Attach. 3 ¶¶ 4, 5, 7, 8. The few Chagossians accepted for jobs on Diego Garcia were born in Mauritius and actively and successfully hid their Chagossian heritage from the hiring personnel. See id. ¶ 9. On many occasions, Plaintiffs have been told that Chagossians cannot apply for jobs on Diego Garcia and that they are automatically disqualified. See id. ¶¶ 5, 7, 8. Often after Chagossian applications have been rejected, the jobs have remained open and advertised or have been filled by Mauritians, Sri Lankans, or Filipinos. See id. ¶ 6. {p.16}

Pl.’s Mem. Supp. Mot. Prelim. Inj. ¶ 7.

 12  Under the Complaint’s allegations Plaintiffs intend to prove Defendant’s conduct resulted in conditions so extreme they caused miscarriage as a result of the shock and depression caused by the expulsion and journey from Chagos.

 13  Under the Complaint’s allegations Plaintiffs intend to prove Defendant’s conduct resulted in arbitrary separation of families, including instances in which parents were exported to Mauritius while their own children were exported to the Seychelles. As a consequence of these separations, and despite thirty years of efforts to reunite, Plaintiffs have not been able to rejoin family members who they now know have passed away.

 14  Under the Complaint’s allegations Plaintiffs intend to prove Defendant’s conduct resulted in the death of members of Plaintiffs’ family, including the trampling of children on the ramp to the boats which carried Plaintiffs from their homeland. In such instances, Plaintiffs were forced to leave behind the bodies of their dead family members.

 15  Defendant limited its argument to the second and third prongs of the standing inquiry. See Def.’s Mem. Supp. Mot. Dismiss at 29. Thus, Defendant concedes the existence of Plaintiffs’ injury in fact. Accordingly, this response {p.22} addresses the only two standing issues raised by Defendant, namely (1) whether the injuries suffered by the Chagossians are fairly traceable to the conduct of Defendant, and (2) whether a favorable decision is likely to redress these injuries.

 16  Given the preliminary stage of the instant action, the record upon which Plaintiffs rely is that which was developed principally by parallel litigation in Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and Another, Queens Bench Division, 2001 Q.B. 1067, 2000 WL 1629583.

 17  British documents show that both governments knew some of the Chagossians were not migrant workers, but were actually “second generation inhabitants of Diego Garcia.” Pls.’ Prelim. Inj. Reply at Attach. 1, ¶ 8. The same {p.24} documents describe a plan – “agreed at the time of the creation of the British Indian Ocean Territory” – to hide the truth from the United Nations about the indigenous status of the Chagossian population. Id.

 

Source: Photocopy of a duplicate original (the Court’s file copy). Omitted: Table of Contents and Table of Cases and Authorities (pp.i-v).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, text beside a green bar (   ), text in yellow boxes, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol: ¶ , sentence-casing section-captions.

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 Nov. 28 2002. Updated May 16 2008.

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