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

United States District Court for the District of Columbia

Filed May 22 2002 Nancy Mayer Whittington, Clerk U.S. District Court

 




 

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

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

Reply
in Support of Defendant United States Motion to Dismiss

I.
Introduction

In its opening brief, the United States explains that this action must be dismissed because there is no applicable waiver of sovereign immunity, and the plaintiffs’ claims present a non-justiciable political question. Additionally, plaintiffs lack standing because issuance of an injunction against the United States would not redress their claimed harms, as it is Britain which controls access to the British Indian Ocean Territory (“BIOT”). Nor can they demonstrate a causal link between the harm they complain of and putatively illegal federal conduct.

Plaintiffs respond with a number of arguments, none of which carries the day. They urge the Court to effect “a change in the law” to create an implied waiver of sovereign immunity. Pl. Opp. at 4. They argue that the Administrative Procedures Act applies to their claims and waives sovereign immunity for the injunctive relief they seek, notwithstanding that they have identified no federal law that can form the basis for an APA action. Plaintiffs seek to avoid the political question doctrine by asserting they do not challenge international agreements or the United States’ decision to build a base on Diego Garcia. But in doing so they mischaracterize Britain’s relocation of the Chagossians, the acts for which they seek redress, as mere “implementation” of the United States’ foreign policy decisions, ignoring the fact that the removal of the Chagossians by the British to make way for the base was integral to the agreement between the United States and Britain. Similarly, plaintiffs assert that they have standing to seek injunctive relief because the United States has “effective control” over the Chagossians’ fate, Pl. Opp. at 22, ignoring that the United States has recognized Great Britain’s sovereignty over the BIOT, and that any “control” the United States has over access to the Archipelago exists solely through diplomatic suasion. {p.2}

II.
No Basis Exists for Judicial Review of Plaintiffs’ Claims

In its opening brief, the United States discusses the three statutes under which plaintiffs allege that jurisdiction exists: 28 U.S.C. § 1331 (Federal Question); § 1350 (Alien Tort Claims Act); and § 1367 (supplemental jurisdiction statute). Complaint, ¶ 3. The United States explains that none of these statutes contains the requisite explicit and unequivocal language manifesting a congressional intent to waive the United States’ sovereign immunity. U.S. Memo. at 10-11. In their opposition brief, plaintiffs make no mention of defendant’s arguments, or of these three jurisdictional statutes. 1 

Citing to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq., and the dissent in Princz v. United States, 26 F.3d 1166 (D.C. Cir. 1994), plaintiffs assert that the Court should accept their argument for “a change in the law” and find an implicit waiver of the United States’ sovereign immunity for alleged violations of international law. Pl. Opp. at 3-4. Plaintiffs’ request must be rejected for several reasons. First, the “Foreign Sovereign Immunities Act” applies only to foreign governments, not to the United States. Second, the dissent in Princz urged a waiver of sovereign immunity for Germany, not the United States. So even if the dissent’s position were adopted it would not help the plaintiffs in this instance, because they seek a waiver of the United States’ sovereign immunity. Third, the Supreme Court has held {p.3} unambiguously that a waiver of the United States’ sovereign immunity must be explicit. “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}, 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”).

With respect to their claims for injunctive relief, Plaintiffs argue that the United States cannot be correct that there has been no waiver of sovereign immunity because:

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 government actions, nor means to halt the continuing violation of their rights. Such cannot be the law.

Pl. Opp. at 4-5. Essentially, the plaintiffs ask the Court to find a waiver of sovereign immunity as a matter of equity. This the Court cannot do. Only Congress can waive the United States’ sovereign immunity, and only explicitly by statute. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37 (1992), cert. denied, 513 U.S. 1121 (1995). This is a court of limited jurisdiction which cannot manufacture a basis for jurisdiction to meet equitable considerations. See e.g., Princz v. Federal Republic of Germany, 26 F.3d 1166, 1176 (D.C. Cir. 1994) (“[S]ubject matter jurisdiction cannot be created by consent, waiver, or even estoppel....”), cert. denied, 513 U.S. 1121 (1995), citing Insurance Corp. v. Compagnie des Bauzites de Guinee, 456 U.S. 694 (1982). {p.4}

Additionally, noting that plaintiffs reference the Administrative Procedures Act in their motion for preliminary injunction, the United States explains in its opening brief that the APA does not provide for judicial review in this instance, because an APA action must be based on a claim that the government has violated a duty imposed by federal statute or the constitution, and plaintiffs cite no such federal statute. U.S. Memo. at 13. “[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).

Plaintiffs, quoting from Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984), argue that the APA eliminates sovereign immunity as a defense in any action seeking injunctive relief against the United States. Pl. Opp. at 5-6. Yet plaintiffs ignore the context of the dicta quoted in Clark: There the court held that the APA’s waiver of sovereign immunity did not apply because the Library is not an agency subject to APA review. Id. Moreover, the Clark court noted that in the case before it “[t]he challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority.” Id. In the instant case, plaintiffs have not alleged a constitutional claim nor have they alleged that any government conduct was ultra vires. Plaintiffs quote M.B. Schnapper v. Foley, 667 F.2d 102, 108 (D.C. Cir. 1981), cert. denied, 455 U.S. 948 (1982), for the proposition that Section 702 waives sovereign immunity unless another statute forecloses injunctive relief. Pl. Opp. at 5. Yet the Schnapper court also notes that Section 702 waives sovereign immunity where injunctive relief is sought and the claim is “‘based on an assertion of unlawful official action by a Federal officer.’” Id. at 107, quoting S. Rep. No. 996, 94th Cong., 2d Sess, at 2 (1976). In M.B. Schnapper plaintiffs alleged violations of federal {p.5} copyright laws. Here, plaintiffs have not identified any federal statute which makes the conduct of the United States unlawful. Finally, plaintiffs quote out of context a passage from Chamber of Commerce of the United States v. Reich {70kb.html}, 74 F.3d 1322, 1328 (D.C. Cir. 1996), for the proposition that “the APA’s waiver of sovereign immunity applies to any suit under the APA or not.” Id. at 1328. Pl. Opp. at 5. Upon close examination it is apparent that this Chamber of Commerce quotation does not establish the extremely broad proposition plaintiffs assert.

First, this general statement does not apply here. When suit is brought to challenge decisions pertaining to foreign affairs the presumption regarding judicial review of agency action “is the opposite of what the APA normally supposes ... When it comes to matters touching on national security or foreign affairs ... the presumption of review ‘runs aground’.” Bruno v. Albright {48kb.html}, 197 F.3d 1153, 1161-62 (D.C. Cir. 1999), citing Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). Second, in Chamber of Commerce the court focused on the narrow issue whether the court could provide judicial review of an executive order that plaintiffs contended was in violation of an applicable federal statute. Specifically, the issue was whether an executive order authorizing the Secretary of Labor to disqualify from certain federal contracts employers who hire permanent replacement workers during lawful strikes was preempted by the National Labor Relations Act (“NLRA”). The NLRA guarantees management the right to hire permanent replacements during labor strikes. In this context, the court ruled that it could review the executive order to determine if it violated rights conferred by the NLRA. Hence, the proposition for which Chamber of Commerce stands is this: {p.6}

The D.C. Circuit’s important opinion in Chamber of Commerce v. Reich {70kb.html}, 74 F.3d 1322, reh’g en banc denied, 83 F.3d 442 (D.C. Cir. 1996) ... serves as a useful reminder that nonstatutory review of agency actions is available in some circumstances. The court held that executive action is subject to nonstatutory review if it is ultra vires and it either violates a statutory prohibition or eliminates a right that is explicitly or implicitly conferred by a statute.

III, Richard J. Pierce, Jr., Administrative Law Treatise, § 18.1, p. 1326 (4th Ed. 2002). Here, the conduct complained of is not ultra vires; nor does it violate any federal statute or eliminate a right conferred by federal statute.

Plaintiffs, citing Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988), concede that “§ 702 reviewability may be dependent upon other law”, Pl. Opp. at 6. The statement in Committee of U. S. Citizens, however, is considerably stronger.

Because 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. In sum, the 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 U.S. Citizens, 859 F.2d at 943 (emphasis in original, quotations and citations omitted). In an attempt to address this hurdle, plaintiffs argue that 10 U.S.C. § 1091 provides a basis for an action pursuant to the APA. Pl. Opp. at 6. Section 1091 is a provision of the Genocide Convention Implementation Act of 1987, § 1092 of which explicitly provides that “nothing in the Act should ‘be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding.’” Manybeads v. United States, 730 F.Supp. 1515, 1521 (D. Az. 1989), aff’d. {11kb.html}, 209 F.3d 1164 (9th Cir. 2000), cert. denied, 532 U.S. 966 (2001), quoting 10 U.S.C. § 1092 (holding that challenge to alleged forced relocation of Hopi Indians based on International Law and United Nations Charter was “legally frivolous”.) {p.7}

Plaintiffs cite to no other federal statute which they contend provides a basis for APA review. 2 

Plaintiffs simply do not come to grips with the breadth of Committee of U.S. Citizens’ holding that the APA cannot be used to enjoin the United States from conduct which allegedly violates international law. In Committee of U.S. Citizens, the court addresses whether there can be judicial review of the United States’ actions as measured against standards of international law, and decisively answers “no”.

[T]he key question is not simply whether the United States has violated any of these three legal norms [contravention of an International Court of Justice ruling, customary international law, and peremptory norms of international law, referred to as jus cogens] but whether such violations can be remedied by an American court or whether they can only be redressed on an international level. In short, do violations of international law have domestic legal consequences? The answer largely depends on what form the “violation” takes. Here, the alleged violation is the law that Congress enacted and that the President signed, appropriating funds for the Contras. When our government’s two political branches, acting together, contravene an international legal norm, does this court have any authority to remedy the violation? The answer is “no” if the type of international obligation that Congress and the President violate is either a treaty or a rule of customary international law.

Committee of U.S. Citizens, 859 F.2d at 935. Similarly, in the present action, the executive branch negotiated with Britain for use of Diego Garcia as the United States’ military base, including Britain’s removal of the Chagossians. After hearing detailed protests regarding the removal of the Chagossians during the November 1975 Congressional hearings, Congress nevertheless appropriated funds for an extensive build up of United States’ operations on Diego Garcia. See Hearings, 94th Cong., June 5 and Nov. 4, 1975 {575 kb}, Exh. D to U.S. Mot. to Dismiss. The {p.8} use of the base continues to this day, its strategic significance more relevant than ever in the United States’ national security efforts. Lucarelli Dec. ¶ 12, Exh. B to U.S. Mot. to Dismiss. The court in Committee of U.S. Citizens noted that where “the political branches face difficult choices — particularly, when both branches act together — they are entitled to great deference.” Id. at 951. In that case Congress appropriated funds for use in Nicaragua and the executive used those funds. Here, the executive negotiated with Britain for the use of Diego Garcia and for the exclusion of civilians (other than contract personnel) from the islands. Congress appropriated funds for the operations on the base, notwithstanding a raging public debate over the treatment of the Chagossians by the British at the United States’ behest.

Having disposed of the issue as to whether the court can review whether the government’s conduct violates customary international law, the court in Committee of U.S. Citizens observed that it was an open question as to whether there could be domestic legal consequences where there is a violation of “a peremptory norm (or jus cogens)”. Id. at 935. The court did not reach the issue, holding that the United States’ conduct in Nicaragua did not rise to the level of violations of jus cogens. On its face the conduct complained of here, negotiating with the British for exclusion of British civilians, the Chagossians, from the Archipelago does not violate the “few norms that arguably do meet the stringent criteria for jus cogens”. See Committee of U.S. Citizens, 859 F.2d at 942, and discussion there regarding what constitutes “jus cogens”. The Court, however, need not consider whether the United States’ conduct violates “jus cogens” norms of international law, because subsequent to Committee of U.S. Citizens, the D.C. Circuit held in Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995), that there can be no implied waiver of sovereign immunity for an {p.9} alleged violation of jus cogens. Responding to the dissent (upon which plaintiffs seek to rely) the majority, noted that “[w]hile it is true that ‘international law is a part of our law,’ Paquete Habana, 175 U.S. at 700, it is also our law that a federal court is not competent to hear a claim arising under international law absent a statute granting such jurisdiction.” Id. at 1174, n.1. Accordingly, the Princz court held that Germany was immune from suit for blatant violations of jus cogens norms by the Third Reich (enslaving the plaintiff, an American Jew, imprisoning him in concentration camps, and murdering his family). See also, Hwang Geum Joo v. Japan {142kb.pdf}, 172 F.Supp.2d 52, 60-61 (D.D.C. 2001) (in suit by former comfort women against Japan for abduction and forced sexual slavery held that “in light of the binding precedent of the D.C. Circuit in Princz, the court concludes that Japan’s jus cogens violations do not constitute an implied waiver under § 1605(a)(1).”)

Moreover, the United States’ acts here did not violate jus cogens. Here, the United States’ conduct consisted of negotiating with the British for use of an uninhabited island, and recognition of British sovereignty over the BIOT territory and over the Chagossians as British Dependent Territory Citizens. These acts — recognition of British sovereignty and diplomatic negotiations — do not in any sense violate international law. In suggesting that the United States’ conduct violates jus cogens norms of international law plaintiffs do not distinguish between the conduct of Britain, which exercised both legal and actual control over the Chagossians and relocated them pursuant to a provision of British law, and the conduct of the United States. Indeed, the court in Committee of U.S. Citizens, took care to distinguish between the conduct of the Nicaraguan Contras and the United States’ funding of the Contras: {p.10}

Congress and the President appropriated aid for the Contras because they determined that the Contras’ opposition to the present government in Nicaragua is important to our security interests. We have already held, in our earlier discussion of international law and jus cogens, that there is nothing constitutionally infirm in this foreign policy judgment. [Id. at 287 {sic: 950}.]

Even if it were assumed, arguendo, that the BIOT Agreements violated jus cogens, the subsequent acts of the executive and Congress (by, inter alia, appropriating funds for a build up of the base and by operating the base consistent with the agreements between the United States and Great Britain) would overrule any principles of jus cogens. See, e.g., Committee of United States Citizens, supra, 859 F.2d at 953 (“Nor has the expansion of international law altered the principle of domestic law that congressional enactments cannot violate but can only supersede prior inconsistent treaties or customary norms of international law.”).

Plaintiffs cannot maintain this action pursuant to the APA because the statute of limitations applicable to APA actions is six years. 28 U.S.C. § 2401(a). The United States notes in its opening brief that 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 made 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, Exh. D to U.S. Mot. to Dismiss. Plaintiffs’ only response is that a statute of limitations argument is “premature”, arguing that “analysis of the statute of limitations issues requires consideration of complex and contested questions of fact.” Pl. Opp. at 7. Plaintiffs rely only on Adair v. England {45kb.pdf}, 183 F.Supp.2d 31, (D.D.C. 2002), a case in which the court declined to dismiss on {p.11} statute of limitations grounds where the plaintiffs alleged fraudulent concealment as tolling the statute of limitations. But in the instant case, the plaintiffs do not identify any facts fraudulently concealed by the United States that have come to light only within the six years prior to initiation of this suit. The Congressional Hearings of 1975 make plain that the essential facts regarding the removal of the Chagossians from the islands, including allegations of secret agreements and misrepresentations regarding the status of the islanders, were known in 1975. Hence, any APA action is time-barred, and there is no reason why the Court cannot determine the statute of limitations issue at this time.

Finally, even if plaintiffs were able to overcome that statute of limitations hurdle, the APA would nonetheless not be available to them. Recognizing that issuance of equitable relief lies in the court’s discretion, the D.C. Circuit has held that it would be an abuse of that discretion to provide injunctive relief against the political branches of government pursuant to the APA for alleged violations of international law. See Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985). In Sanchez-Espinoza, plaintiffs challenged the United States’ activities in Nicaragua. Noting that “all the bases for nonmonetary relief [under § 702 of the APA] — including injunction, mandamus and declaratory judgment — are discretionary,” id. at 207, the Court held that it would be an abuse of discretion to judicially contravene the government’s decisions to provide support to the Contras:

At least where the authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it would be an abuse of our discretion to provide discretionary relief. The support for military operations that we are asked to terminate has, if the allegations in the complaint are accepted as true, received the attention and approval of the President, the Secretary of State, the Secretary of Defense, and the Director of the CIA, and involves the conduct of our diplomatic {p.12} relations with at least four foreign states .... Whether or not this is, as the District Court thought, a matter so entirely committed to the care of the political branches as to preclude our considering the issue at all, we think it at least requires the withholding of discretionary relief.

Id. at 208, notes, citations omitted. See Bruno v. Albright {48kb.html}, supra. Just as the United States’ support of the Contras received attention of Congress and the executive branch at high levels, so has the United States decision to negotiate with Britain to place a military base on the uninhabited island of Diego Garcia. Congress and the executive considered the impact on the Chagossians, and, by funding and going forward with the base, indicated their conclusion that the United States’ national security interests outweighed any harm suffered by the Chagossians. Whether or not plaintiffs allege that the actions by Britain toward the Chagossians, at the United States’ behest contravened international law, it would be an abuse of discretion under the APA for the Court to enjoin the political branches in this matter.

Finally, injunctive relief should be denied because the United States could bring about plaintiffs’ return to the Chagos Archipelago only in ways which the Court lacks the discretion to order. The United States has recognized Britain’s sovereignty over the BIOT and thus Britain’s control of entry of persons into the BIOT through its customs. 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. One way to bring about the entry of the Chagossians would be for the United States to reverse its recognition of British sovereignty over the BIOT. But recognition of sovereignty is the exclusive province of the Executive. See 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....”). {p.13}

Hence, the Court cannot order the Executive to withdraw its recognition of Britain’s sovereignty over the BIOT. The other way in which the United States might effect the return of the Chagossians would be to negotiate with Britain to permit their re-entry. Yet it is well-settled that the Court has no authority to order the executive to take a particular position in negotiations with foreign countries. See Miller v. Albright {DoJ summary}, 1998 WL 846653 (D.C. Cir. 1998) (“To the extent the district court’s order required the Secretary of State to adopt a certain position in negotiations with the Federal Republic of Germany, the order represents an unwarranted usurpation of the executive’s conduct of foreign relations.”) citing Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978) (an order directing action by the Secretary of State in foreign affairs “deeply intrudes into the core concerns of the executive branch” and would require an “extraordinarily strong showing to succeed” if in fact it is justiciable.) Accordingly, the injunctive relief plaintiffs seek is not within the Court’s authority to issue.

III.
Plaintiffs’ challenge to their removal from the archipelago and exclusion from Diego Garcia implicates a non-justiciable political question

In its opening brief, the United States discusses in detail the applicability of the political question doctrine to the plaintiffs’ suit. U.S. Memo. at 16-29. That brief explains that the United States sought and negotiated with Great Britain for permission to establish a military base on Diego Garcia, to place the base on an unoccupied island, and to limit access to the islands to maintain security. See generally, Exhibits to U.S. Mot. to Dismiss. These policies were fully addressed by Congress during the 1975 hearings regarding appropriations for extending operations on the base. Hearings {575 kb}, Exh. D to U.S. Mot to Dismiss. Because plaintiffs’ suit {p.14} challenges these political decisions, they raise a non-justiciable political question. 3 

Plaintiffs have responded with the facially simplistic argument that they do not seek to challenge “the Executive’s foreign policy, Plaintiffs challenge only the legality of Defendant’s implementation of that policy.” Pl. Opp. at 10. But, of course, their suit attacks the United States’ policy. 4  The challenged conduct, “removal of the Chagossians from their homeland” Pl. Opp. at 9, is not merely “implementation”, Id. at 10, of the United States’ foreign policy — rather it is at the core of the United States’ policy regarding establishment of a secure base at Diego {p.15} Garcia. Regina (Bancoult) v. Secretary of State for Foreign Affairs and Commonwealth Affairs and Another {[2001] Q.B. 1067}, Queens Bench Division, 2000 July 17, 18, 19, 20; Nov. 3, 2000 WL 1629583. Moreover, plaintiffs assertion that there is a “lack of any significant history of the political branches managing the issues surrounding the Chagossian community” flies in the face of the plaintiffs’ complaints that the Chagossians were removed from the islands by the British at the express wishes of the United States. Id. 5 

Plaintiffs claim they do not challenge the BIOT Agreements themselves, Pl. Opp. at 8, but the BIOT Agreements expressly provide that access to Diego Garcia shall be restricted to “members of the Forces of the United Kingdom and of the Untied States, the Commissioner and public officers in the service of the British Indian Ocean Territory, representatives of the Governments of the United Kingdom and of the United States and, subject to normal immigration requirements, contractor personnel.” BIOT Agreement, Agreement supplementing the Agreement of December 30, 1966, Entered Oct. 1972, pp. 5-6, Attachment to Exhibit B to U.S. Mot. to Dismiss. The removal of the Chagossians was effected under British Law and pursuant to the diplomatic agreement between the United States and Britain:

The Immigration Ordinance 1971 of the British Indian Ocean Territory, purportedly made under section 11 of the 1965 Order, provided by section 4 for the compulsory removal of the whole of the existing civilian population of the territory to Mauritius and prohibited their return. The purpose of the 1965 Order and the 1971 Ordinance was to facilitate the establishment of a strategic American military base on the main island of the archipelago, Diego Garcia, pursuant to the agreement between the governments of the United Kingdom and United States of America. {p.16}

Regina (Bancoult) {[2001] Q.B. 1067}, 2000 WL at 1629583 {quoting the headnote, not the opinion}.

Moreover, during the November 1975 hearings, Congress looked closely at the issue of resettlement of the Chagossians. See Hearings {575 kb}, 94th Cong. 2nd Sess., Exh. D to U.S. Mot. to Dismiss. The Congressional record makes it patently clear that resettlement was integral to the United States’ foreign policy objectives, and to its agreements with Great Britain. A Report made part of the Record (id. at 37) explained the circumstances and reasoning behind relocation of the islanders:

Since the island populations were almost totally dependent on the plantations, it followed that defense use would require the relocation of the workers and their families. Under the agreement, the British Government, which retained full sovereignty over the BIOT, assumed the responsibility for all administrative arrangements including any required resettlement, when islands were required for the defense needs of either country.

One of the main considerations in setting up the British Indian Ocean Territory was that the islands were thinly populated essentially by contract laborers and their dependents, whose attachment to a specific locale was tenuous. ... There were several reasons for desiring uninhabited islands for military use. Security was a factor considered by both governments. The United States was concerned about the social problems that could be expected when placing a military detachment on an isolated tropical island alongside a population with an informal social structure and a prevalent cash wage of less than $ 4.00 per month. It appears that the United Kingdom also was concerned with the problems involved in establishing civil administration or islands it was considering developing for military purposes. [Id. at pp. 41-42 (Emphasis added).]

During the November 1975 hearings, Congress explored in detail allegations that the status of the Chagossians had been misrepresented to Congress and that relocation of the Chagossians was accomplished through special secret agreements between the United States and Britain:

Senator Culver. Mr. Chairman, this report [referenced above] generally confirms the press reports which have come out in recent weeks and reveals that the whole base acquisition and the accompanying depopulation of Diego Garcia was {p.17} tarnished by secret agreements withheld from the appropriate committees of the Congress.

In barest outline the facts are these. In 1964 approximately 1,000 people lived in the Chagos Archipelago, of whom nearly 500 were on Diego Garcia, where they were engaged in the production of copra and other coconut products.

Of these people on Diego Garcia about half were considered “ilois,” that is, those native or otherwise closely oriented to the islands rather than to Mauritius or the Seychelles.

SECRET ARRANGEMENTS

In 1966 the United States and the United Kingdom signed an executive agreement granting American military base rights for 50 years.

One of the provisions of this public agreement requires consultation on “administrative measures” to enable the island to be used for defense purposes. In fact those measures were to be the depopulation of the island.

Another provision, paragraph (4), says quite explicitly: “the required sites shall be made available to the United States Authorities without charge.”

In fact the accompanying secret agreements provided that the United States would compensate Britain for acquisition expenses by waiving payments due as surcharges for research and development of the British-purchased Polaris missile system. The U.S. Government promised to bear half the cost, up to $14 million, by such waivers.

There is no record that the Congress was told of these secret arrangements in 1966. [Id. at 45.]

“ Mr. Hamilton. Is it the position of our Government now, that we have no resposibility toward these islanders?

Is that our position?

Mr. Churchill. We have no legal responsibility. p.66

Mr. Hamilton. I suppose you are correct, Mr. Churchill, when you say that we have no legal responsibility for these people. p.81”

1975 Hearings, p.66p.81

In light of the above, plaintiffs’ assertion that Congress and the Executive branches never involved themselves in the issue of the Chagossian’s relocation rings hollow. The removal of the Chagossians was not an afterthought undertaken on impulse by low level personnel, but rather was integral to a plan agreed to through diplomatic agreements between two sovereign nations.

Plaintiffs cite to a group of cases which challenge the legality of funding decisions for activities overseas to support their argument that the political question doctrine does not bar judicial review of implementation decisions. See Pl. Opp. at 10-11. But there is a crucial distinction between the case at bar and these cases: In each case cited by plaintiffs, the court was called upon to adjudicate whether the government’s conduct violated an applicable constitutional provision and/or federal statute. These cases stand for the proposition that courts may adjudicate {p.18} the legality of governmental action as measured by applicable constitutional and federal statutory standards, notwithstanding that judicial decisions may have foreign policy or political repercussions.

Indeed, DKT Memorial Fund, Ltd. v. Agency for International Development, 810 F.2d 1236 (D.C. Cir. 1987), states that plaintiffs “challenge the legality of A[gency for] I[nternational] D[evelopment]’s implementation of the Policy” and accordingly the court held that the issue presented was not a nonjusticiable political question. Id. at 1238. In DKT Memorial, the “policy” was the United States’ decision not to contribute funds to foreign entities that perform or actively promote abortion as a method of family planning abroad. Id. at 1237. The “implementation” that plaintiffs challenged was AID’s insertion of clauses in its grants and agreements that would force entities to certify that they do not engage in certain abortion-related activities. Plaintiffs sought a ruling that AID’s requirement “is inconsistent with and in excess of, the Foreign Assistance Act of 1961 [] and the Continuing Appropriations Act[], is a violation of [plaintiffs’] first and fifth amendment rights . ...” Thus, the allegation was that the specific acts taken to “implement” the policy were in conflict with applicable federal statutes and constitutional provisions. Under these circumstances, the court held that the political question doctrine did not bar judicial review. The other cases cited by plaintiff similarly all involved challenges to federal funding decisions for entities operating abroad that were alleged to be in conflict with federal statutes or otherwise in conflict with federal law. 6  In contrast, in the instant {p.19} action, the conduct that plaintiff describes as merely “implementation” i.e., exclusion of the Chagossians (or more accurately, the United States’ negotiation with Britain for Britain’s exclusion of the Chagossians), is not alleged to be in conflict with any applicable federal statute or constitutional provision.

Plaintiffs also misplace reliance on Ramirez de Arellano v. Weinberger, 745 F.2d 1500 {500kb.html} (D.C. Cir. 1984), cert. granted and remanded, 471 U.S. 1113 (1985), dismissed on remand, 788 F.2d 762, 764 (D.C. Cir. 1985) (“Now that equitable relief would not halt an asserted, ongoing violation but would merely forestall a potential violation, it is far from clear that a favorable disposition of plaintiffs’ claims on the merits would warrant equitable relief that intrudes into the conduct of foreign and military affairs.”). There, plaintiffs were United States citizens who owned a cattle ranch in Honduras. They alleged a taking of their property by the United States when it occupied and used their property for a military training ground. Plaintiffs contended that the United States’ action violated their Constitutional right to just compensation for a taking and for due process. Noting that adjudication of plaintiffs’ claim “will necessitate interpretations of the Constitution and of federal statutes”, id at 1513, the court held that the matter did not present a nonjusticiable political question. Unlike the plaintiffs in Ramirez de Arellano v. Weinberger, the instant plaintiffs, as aliens in a foreign country, have no rights under either the United States Constitution or federal statutes to enforce. 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 {p.20} the United States are not protected by the Fourth Amendment.) See also discussion, U.S. Memo. at 14-15.

It is telling how the plaintiffs paraphrase the following passage in Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 222 (1986), which noted that the political question doctrine will not prevent a court from engaging in straightforward statutory construction merely because the case has political or foreign relations overtones:

[T]he challenge to the Secretary’s decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation’s foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.

Id. at 222 (emphasis added) 7 . When referring to this passage, plaintiffs state that “the Judiciary will not shirk the responsibility of adjudicating cases.” Pl. Opp. at 12 (emphasis added.) Here, plaintiffs do not ask the Court to “interpret statutes”, but rather to decide a “case” that balances their personal interests against the United States’ security interests. To do so, the Court would have to substitute its judgment for that of the executive and legislative branches regarding military and security concerns and the need to generally exclude civilians from Diego Garcia. {p.21}

In the instant case plaintiffs have not identified any federal law or constitutional provision that the United States’ conduct violates. Rather, plaintiffs challenge the United States’ decision to negotiate with Great Britain to relocate the Chagossians so that the base could be built on an uninhabited island. That decision directly implicates political questions. Plaintiffs would have the Court balance their desire to return to their homeland against the United States’ military and security interests in locating and maintaining a strategic base on in uninhabited island. Unlike in the cases plaintiffs cite, no federal statute or constitutional provision supplies a manageable standard by which the Court can perform this balancing act.

To grant the injunctive relief plaintiffs seek, 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. Central Leather Co., 246 U.S. at 302. “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 (D.C. Cir. 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), cert. denied, 488 U.S. 954 (1988).

Finally, plaintiffs’ description of the control that the United States exercises over the fate of the Chagossians as “effective”, Pl. Opp. at 22, 24, reflects their intentional avoidance of the diplomatic, foreign policy context of their claim. As discussed above, to the extent the United States exercises any control it is through its recognition of British sovereignty over the islands and the Chagossians, and through diplomatic negotiations with Britain. {p.22}

IV.
Plaintiffs Lack Standing to Request the Injunctive Relief They Seek from the United States

In its opening brief the United States explains that plaintiffs lack standing for the injunctive relief they seek because they cannot demonstrate a “causal connection between the injury and the conduct complained of” and their “injury would [not] 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). This is because it is not within the United States’ power to grant or deny access to the Archipelago since it recognizes British sovereignty over the BIOT.

Plaintiffs largely misconstrue the United States’ argument that they lack standing: Plaintiffs argue that there is a causal relationship between the United States’ conduct and Britain’s exclusion of the Chagossian’s. See Pl. Opp. at 22-24. Plaintiffs miss the point: To establish standing plaintiffs must show that their injury is a “result of the putatively illegal conduct of the defendant.” Pharmaceutical Research and Manufacturers, supra, 135 F.Supp.2d 1, 8-9 (D.D.C. 2001) quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) (emphasis added). But here the acts of the United States are not putatively illegal because the executive branch has unfettered discretion to decide who has sovereignty over a particular territory and to negotiate agreements with other sovereigns. 8  The United States has chosen to recognize British sovereignty over the BIOT. The {p.23} Court cannot tell the State Department to reverse that recognition. Nor can the Court tell the State Department to negotiate with Britain to admit the Chagossians. See Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). See also United States v. Belmont, 301 U.S. 324, 328 (1937) (“[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 ....”)

Standing also requires that the injury “‘is fairly likely to be redressed by a favorable decision.’” Pharmaceutical Research and Manufacturers, supra, 135 F.Supp.2d at 8-9, quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). Plaintiffs fail anywhere in their pleadings or briefs to articulate precisely what they would have the Court direct someone within the State Department or Department of Defense to do to bring about the return of the Chagossians. This silence reflects that there is no injunction which the Court has constitutional authority to enter which would grant plaintiffs the relief they seek. Indeed, as long as the United States chooses to recognize Britain’s sovereignty over the BIOT, any injunction the Court entered against the executive branch regarding the Chagossian’s access would violate the Separation of Powers Provisions of the Constitution, because diplomatic negotiations and recognition of the sovereignty of foreign nations are matters unquestionably committed to the Executive branch. U.S. Const. Art. II, § 2. See Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). See also United States v. Belmont, 301 U.S. 324, 328 (1937) (“[T]he conduct of foreign relations was committed by the Constitution {p.24} 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 ....”) In particular, where meaningful relief would depend on the cooperation of another nation, a court should be reluctant to conclude that such meaningful relief will be forthcoming. See Talenti v. Clinton {38kb.html}, 102 F.3d 573, 578 (D.C. Cir. 1996) (redressability element was not satisfied where an injunction requiring U.S. sanctions against Italy was not likely to result in the Italian government providing compensation to plaintiff.) Hence, plaintiffs’ continued exclusion is not fairly traceable to the “challenged action” and their contention that entry of an injunction would remedy their harms is unfounded. Pharmaceutical Research and Manufacturers, supra, 135 F.Supp.2d at 8-9, quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). {p.25}

V.
Conclusion

For the foregoing reasons and based upon the entire record herein, the United States respectfully requests that its motion to dismiss be granted.

Respectfully submitted,

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

Roscoe C. Howard, Jr.
United States Attorney

Jeffrey Axelrad
Director, Torts Branch, Civil Division

 

Signatures: Paul F. Figley, Elaine Marzetta Lacy

{Signature}

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


{Signature}

Elaine Marzetta Lacy
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 888
Washington, DC 20044
Ph: 202-616-4285
Fax: 202/616-5200
Maryland Bar (No BAR #)

Attorneys for United States of America

{p.26}

______________________

Certificate of Service

I hereby certify that on May 22, 2002, I mailed by first class mail, a true copy of the foregoing United States Reply in Support of Motion to Dismiss to the following counsel of record (and sent by telecopier to Michael Tigar):

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

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

Cynthia T. Andreason
LeBoeuf, Lamb, Green & MacRae, LLP
1875 Connecticut Avenue, N.W.
Washington, D.C. 20009-5728

Signature: Elaine Marzetta Lacy

 

{Signature}

Elaine Marzetta Lacy

Footnotes

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

 1  The United States also notes that the Federal Tort Claims Act cannot provide a waiver of sovereign immunity because plaintiffs, by their own admission, have not complied with the administrative claims requirements of the FTCA which is a prerequisite to filing suit. U.S. Memo. at 11-12. Plaintiffs’ bizarre retort is that the United States effectively denied the administrative claim by responding to the Complaint with a motion to dismiss. Pl. Opp. at 7. This is an absurd reading of the administrative claim requirement that flies in the face of both the express terms of 28 U.S.C. § 2675, and McNeil v. United States, 508 U.S. 106 (1993). Not surprisingly, plaintiffs cite no authority to support their contention.

 2  Plaintiffs vaguely refer to “laws 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” as providing a basis for an APA action.” Pl. Opp. at 6. Yet this ignores that the APA provides review only for compliance with federal law.

 3  Plaintiffs repeatedly argue that Judge Scalia’s opinion in Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985), has no bearing on application of the political question doctrine here because the decision did not rely on the political question doctrine: “The Sanchez-Espinoza Court was not concerned with the merits of the case ... [and] the words Defendant quotes fall completely outside any form of political question analysis.” (Pl. Opp. at 18-19; see also id. at 14, n.9). They are mistaken. In Sanchez-Espinoza the D.C. Circuit, “[w]ithout necessarily disapproving the District Court’s conclusion that all aspects of the present case present a nonjusticiable political question” chose not to apply the doctrine “for most of the claims[] [s]ince we find other bases for dismissing the suit....” 770 F.2d at 206. With regard to the war powers issue, however, the court did apply the political question doctrine to bar suit. Id. at 210.

 4  Plaintiffs’ characterization of their suit is hardly binding on the Court. As the Ninth Circuit observed in General Dynamics Corp. v. United States {54kb.html, txt}, 139 F.3d 1280, 1283 (9th Cir. 1998):

Courts are not required to, and should not, simply look at the surface of a complaint for the purpose of ascertaining the true basis of an attack upon something the government has done. Thus, a party may choose to dub his claim as one for negligence when it is truly a claim for misrepresentation, for which jurisdiction is excluded. Courts need not accept the label. See United States v. Neustadt, 366 U.S. 696, 703, 81 S.Ct. 1294, 1299, 6 L.Ed.2d 614 (1961). Similarly, a party might choose to say that he is suing for infliction of emotional distress so that he can avoid the bar against slander claims. Again, the courts need not accept the label. See Thomas-Lazear v. FBI, 851 F.2d 1202, 1206-07 (9th Cir. 1988); see also Metz v. United States, 788 F.2d 1528, 1535 (11th Cir. 1986); Enterprise Elec. Corp. v. United States, 825 F.Supp. 983, 985 (M.D. Ala. 1992). We see no reason to accord amaranthine obeisance to a plaintiffs designation of targeted employees when we refuse to be bound by his choice of claim labels.

 5  If plaintiffs mean to suggest that the United States has not been directly involved in managing the welfare of the Chagossian community, this is hardly surprising. The Chagossians are British Dependent Territory Citizens, not American citizens.

 6  See also, Population Institute v. McPherson, 797 F.2d 1062, 1067-68 (D.C. 1986) (whether in deciding to withhold funds from an entity “the President’s delegate committed legal error when he mistakenly assumed that he was compelled by law to apply the statutory interpretation advanced by the author of the statutory language.”); Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991) (whether grants made to sectarian schools violate the Establishment Clause {p.19} of the Constitution); Planned Parenthood v. Agency for International Development, 838 F.2d 649 (D.C. Cir. 1988) (whether AID’s basis for conferring grants violates terms of and exceeds authority of applicable federal statute, The Foreign Assistance Act of 1961).

 7  In Japan Whaling the court considered the narrow question whether the Secretary of Commerce’s decision not to certify Japan for harvesting whales in excess of quotas was within the discretion granted him under the applicable federal statute; it held that is was a permissible exercise of his discretion. Id. at 241.

 8  Similarly, plaintiffs’ allegation that the United States discriminates against Chagossians in its hiring practices on Diego Garcia does not allege “putatively illegal” conduct, because it is well-established that aliens in a foreign territory have no rights under the United States constitution. 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 or Fifth Amendment.) See also, People's Mojahedin Organization of Iran v. United States Department {p.23} of State, 182 F.3d 17, 22 (D.C. Cir. 1999) {31kb.html/txt, 31kb.txt} (“A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.”)

 

Source: Photocopy of a duplicate original (the Court’s file copy). Omitted: Table of Contents and Table of 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, sentence-casing the section captions, box p.17.

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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