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

United States District Court for the District of Columbia

 

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

Reply Memorandum in Support of Individual Federal Defendants’ Motion to Dismiss

Although the plaintiffs brought suit alleging essentially that high-level United States officials were complicit in their forcible removal from the Chagos Archipelago in order that United States military facilities could be built on the Island of Diego Garcia, the plaintiffs nevertheless claim that those same officials acted outside the scope of federal office or employment in so attending to the Government’s business. Because that plainly is not so, and for the other reasons set forth in our opening Memorandum, the individual federal defendants’ Motion to Dismiss should be granted.

I.
Immunity

A party challenging a Westfall Act 1  certification bears the burden of establishing that the defendant government official acted outside the scope of federal office or employment. See Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994). Because the Westfall Act amends the Federal Tort {p.2} Claims Act, local law — here that of the District of Columbia — is consulted when scope of employment is placed at issue. See Haddon v. United States {63kb.html/txt}, 68 F.3d 1420, 1423 (D.C. Cir. 1995). Local law is consulted, but the Westfall Act embodies a federal policy of conferring on federal officials a broad absolute immunity from suit. See United States v. Smith, 499 U.S. 160, 163 (1991); Haddon {63kb.html/txt}, 68 F.3d at 1423. “One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991) (citation omitted)). Here, even assuming for argument’s sake that the complaint’s allegations are true, it is readily apparent that Secretary Rumsfeld and the other individual defendants acted in the scope of office or employment and are immune.

A.

Under District of Columbia law:

Haddon {63kb.html/txt}, 68 F.3d at 1423 (quoting Restatement (Second) Agency § 228 (1957)). As even the plaintiffs acknowledge, see Opposition at 7 n.8 {withheld by the court clerk from public inspection}, these standards have been generously applied to find a broad variety of tortious, and even criminal, conduct within the scope of employment. See, e.g., Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir. 1976) (holding that a mattress deliveryman acted in the scope of employment when assaulting and raping a customer); Howard University v. Best, 484 A.2d 958, 987 (D.C. 1984) (holding that a dean acted in the scope of employment when sexually harassing a {p.3} faculty member); Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981) (holding that laundry employee acted in the scope of employment when shooting a customer in a dispute over missing shirts). Against this backdrop, the conclusion that the Secretary of Defense and other high level officials of the Department of Defense and Department of State acted in the scope of their federal office or employment in establishing a United States military outpost overseas should be unremarkable. The plaintiffs’ arguments to the contrary do nothing to alter this conclusion.

To begin, the plaintiffs seek to impose personal liability, yet they do nothing whatsoever to show how each of the individual defendants — Secretary Rumsfeld, former Secretaries McNamara, Laird and Schlessinger, former Chiefs of Naval Operations Moorer and Holloway, and former State Department officials Newsom and Churchill, acted outside the scope of employment. To the contrary, the plaintiffs’ scope challenge proceeds on the basis of assertions that are broadly collective and wildly conclusory. See, e.g., Opposition at 8 {withheld by the court clerk from public inspection} (“[t]he Individual Federal Defendants are directly responsible for stranding Plaintiffs in Mauritius and Seychelles”); id. (“[t]he Individual Federal Defendants’ conduct were [sic] not actions of the type the individual defendants were employed to perform, much less an outgrowth of their job assignments”); id. at 9 (“[t]hat these individuals may have negotiated, planned, and maintained the development and construction of the military facilities on Diego Garcia, on the Chagossians’ home-land does not place acts constituting genocide, forced relocation, torture, cruel and inhuman and degrading treatment, systematic racial discrimination, intentional infliction of emotional distress, and negligence in the scope of their employment.”); id. at 9-10 (“The mere fact that the Individual Federal Defendants were in a unique position, having the opportunity to interact with the Chagossian people, does not qualify their outrageous behavior as within the scope of employment.”). These conclusory assertions {p.4} are not a sufficient basis upon which to mount a scope of employment challenge. See, e.g., Gutierrez de Martinez v. Drug Enforcement Admin. {44kb.html/txt}, 111 F.3d 1148, 1155 (4th Cir. 1997). 2 

Apart from that failing, the plaintiffs’ arguments fall short of the mark. The plaintiffs insist first that the individual federal defendants’ actions were “not actions of the type the individual defendants were employed to perform, much less a direct outgrowth of their job assignments.” Opposition at 4 {withheld by the court clerk from public inspection}. Under District of Columbia law, however, conduct satisfies the first scope of employment criterion (i.e., the conduct is “of the kind [the employee] is employed to perform”) so long as the conduct is “‘of the same general nature as that authorized’” or ‘incidental to the conduct authorized.’” Haddon {63kb.html/txt}, 68 F.3d at 1424 (quoting Restatement (Second) Agency § 229 (1957) (emphasis added)). Here, the plaintiffs concede that “establish[ing] a military base” is within the scope of employment. See Opposition at 10 {withheld by the court clerk from public inspection}. They further concede that the State Department’s Office of Political and Military Affairs is responsible “for formulating and implementing policy on international security.” Opposition at 9 n.12 (citing United States Government Manual, 294-95 (2001) (emphasis plaintiffs’)). Likewise, the plaintiffs concede that the Chief of Naval Operations (“CNO”) is “responsible to the Secretary of the Navy for the command, utilization of resources and operating efficiency of the operating forces of the Navy and of the Navy shore activities” and is the “principal advisor to the President and the Secretary on the conduct of war.” Id. (internal quotations and citation omitted). Indeed, the plaintiffs concede that the various Individual Defendants’ government offices empowered them to “negotiate and/or order the construction of military {p.5} facilities,” id. at 9, and that “establish[ing] a military base” is in the scope of these defendants’ employment. See id. at 10 {withheld by the court clerk from public inspection}.

It follows that the conduct alleged in the complaint here, then, was “of the same general nature as that authorized” or “incidental to the conduct authorized.” Haddon {63kb.html/txt}, 68 F.3d at 1424 (citation and internal quotation omitted). The complaint alleges that

Compl. ¶ 17. Assuming for argument’s sake that these allegations are true and that the individual federal defendants somehow are responsible for the conduct alleged, the alleged improper displacement of the plaintiffs and other residents of the Chagos Archipelago nevertheless clearly occurred incident to what the plaintiffs concede to be United States’ officials’ authorized conduct in establishing a military base in the Indian Ocean. See Opposition at 10 {withheld by the court clerk from public inspection}.

The plaintiffs also argue that “[t]he Individual Federal Defendants’ employment with the United States Government does not make their authorization, implementation, and use of force against the Chagossian people expected.” See Opposition at 10 {withheld by the court clerk from public inspection}. Under District of Columbia law, however, conduct — including the use of force — is in the scope of employment (and hence, not “unexpected”) where it arises directly from the employee’s performance of duties. For example, in Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976), a deliveryman who raped and assaulted a customer was held to have {p.6} acted in the scope of employment because the rape and assault followed directly from a dispute over how the customer would pay the balance of what was a C.O.D. delivery. The Court of Appeals explained that “[t]he dispute [over payment] arose out of the very transaction which brought Carey to the premises, and, according to the plaintiff’s evidence, out of the employer’s instructions to get cash only before delivery.” Id. at 652.

Similarly, in Johnson v. Weinberg, 434 A.2d 404 (D.C. 1981), the District of Columbia Court of Appeals held that a laundromat employee acted in the scope of employment when shooting a customer during a dispute over missing shirts. The court reasoned that the employee’s duties included removing clothes left in washing machines as they finished washing so that the machines would be available to other patrons. Id. at 408-09. Thus, the employer fairly could anticipate that its employee would be confronted by customers over missing shirts, and that was sufficient to bring within the scope of employment the employee’s action in shooting a customer in such a dispute. The court explained that “where a tort is the outgrowth of a job-related controversy, ‘then the employer remains liable, since the master and servant relationship is not broken.’” Id. at 408 (quoting Penn Central Transp. Co. v. Reddick, 398 A.2d 27, 30 (D.C. 1979)).

In light of these authorities, the plaintiffs’ arguments in this case necessarily fail. Even assuming it is true that United States officials were responsible for “using force” to evacuate Diego Garcia and surrounding islands, that use of force necessarily arose directly out of the United States’ effort to establish a military base in the Indian Ocean region, and plainly was the “outgrowth of a job-related {p.7} controversy.” See Johnson, 434 A.2d at 408. See also Lyon, 533 F.2d at 652. 3  Although the plaintiffs also argue that “[t]he Individual Federal Defendants exercised no other options, including those within the scope of their employment, such as diplomacy or negotiation, to depopulate the Chagos Archipelago, or to establish a military base that co-exists with the indigenous Chagosians,” Opposition at 10 {withheld by the court clerk from public inspection}, these arguments amount to little more than the supposition that an employee exceeds the scope of employment whenever he commits a tort, which plainly is not the point of either the scope of employment doctrine under District of Columbia law, or, more important, Westfall Act immunity. See Johnson v. Carter, 983 F.2d 1316, 1323 (4th Cir. 1993). The Westfall Act was intended to confer a broad absolute immunity on federal officers and employees. See United States v. Smith, 499 U.S. at 163. And as the Court of Appeals has observed in a similar context, “if the scope of an official’s authority or line of duty were viewed as coextensive with the official’s lawful conduct, then immunity would be available only where it is not needed; in effect, the immunity doctrine would be ‘completely abrogate[d]’.” Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990) (quoting Martin v. D.C. {p.8} Metropolitan Police Dep’t, 812 F.2d 1425, 1429 (D.C. Cir. 1987) (quoting in turn Briggs v. Goodwin, 569 F.2d 10, 15 (D.C. Cir. 1977))). 4 

Indeed, it is clear that the plaintiffs’ various scope of employment arguments come down to their vigorous insistence that United States officials should have approached the establishment of a military base in the Chagos Archipelago in a fashion different from that which the plaintiffs describe in their complaint. See, e.g., Opposition at 10 {withheld by the court clerk from public inspection}. But committing a legal wrong obviously does not place an employee outside the scope of employment. “If the other [scope of employment] factors involved indicate that the forbidden conduct is merely the servant’s own way of accomplishing an authorized purpose, the master cannot escape responsibility no matter how specific, detailed and emphatic his orders may have been to the contrary.” W. P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts, § 70 at 503 (1984) (footnote omitted).

The plaintiffs rely on Boykin v. District of Columbia, 484 A.2d 560 (D.C. 1984), and Gambling v. Cornish, 426 F.Supp. 1153 (N.D. Ill. 1977), as support for their argument that high-level United States officials’ actions in establishing a military base in the Chagos Archipelago were {p.9} beyond the scope of employment. Boykin involved a public school employee’s rape of a 12 year-old student; conduct far different from what is alleged here. See 484 A.2d at 561. The rape and assault were outside the scope of employment because “[i]t certainly was not a direct outgrowth of Boyd’s instructions or job assignment, nor was it an integral part of the school’s activities, interests or objectives.” Id. at 562. Likewise, the “assault was in no degree committed to serve the school’s interest, but rather appears to have been done solely for the accomplishment of Boyd’s independent, malicious, mischievous and selfish purposes.” Id.

Similarly, in Gambling, two off-duty police officers attempted to abduct and assault the plaintiff and some friends. Only when on-duty officers arrived to investigate the ensuing melee did the defendant officers identify themselves as police, and then they falsely claimed they were arresting the plaintiff. Fooled, the on-duty officers departed, and the defendants abducted, assaulted and raped the plaintiff. See 426 F.Supp. at 1154. The defendants did not act in the scope of employment, the court explained, because their actions were “too outrageous * * * to be considered ‘expectable’ under the Second Restatement test,” and because “it is clear that [defendants] Webster and Cornish had no intention to further the City’s interest but were motivated solely by a desire to gratify their personal interests.” Id. at 1155.

The assaults and rapes at issue in Boykin and Gambling plainly bear no comparison to this case. It cannot realistically be said that the Secretary of Defense and other high-level United States officials were “in no degree committed to serve the [United States’] interest,” Boykin, 484 A.2d at 562, or “were motivated solely by a desire to gratify their personal interests,” Gambling, 426 F.Supp. at 1155, when acting to establish a United States military base in the Chagos Archipelago. {p.10}

B.

With no sound argument that high-level officials of the Department of Defense and Department of State exceeded the scope of federal employment in establishing the United States military base on Diego Garcia, the plaintiffs bring forth the deus ex machina of jus cogens norms of international law. See Opposition at 11-12 {withheld by the court clerk from public inspection}. See also Compl. ¶ 6.a. (“the acts complained of are violations of peremptory norms of international law as to which no person or state may claim immunity”). As an initial matter, the plaintiffs’ hypothesis that allegations of jus cogens violations defeat immunity otherwise conferred under United States domestic law is not correct. See, e.g., Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 & n.1 (D.C. Cir. 1994). International law may be part of our law, see The Paquete Habana, 175 U.S. 677, 700 (1900), but it supplies the rule of decision in our courts only “where there is no treaty and no controlling executive or legislative act or judicial decision * * * .” Id. (emphasis added). Accord Princz, 26 F.3d at 1174 n.l. The Westfall Act is such a “controlling legislative act,” in which Congress conferred a broad absolute immunity for the negligent or wrongful acts or omissions of federal employees acting in the scope of employment. See 28 U.S.C. § 2679(b)(1). That immunity is subject to only two exceptions, see id. § 2679(b)(2), neither of which embraces alleged violations of jus cogens norms of international law as such. In light of the Act’s two express exceptions to its general rule of immunity, the plaintiffs’ proposed third exception cannot be implied. See Smith, 499 U.S. at 166-67 (“Congress’ express creation of these two exceptions convinces us that the Ninth Circuit erred in inferring a third exception.”).

In a variation of their theory that immunity is not available for what they characterize as jus cogens violations, the plaintiffs posit that jus cogens violations never can be within the scope of a {p.11} government official’s employment. See Opposition at 11 {withheld by the court clerk from public inspection}. The plaintiffs’ sole authority for that proposition is Mathurin v. Government of the Virgin Islands, 398 F.Supp. 110 (D.V.I. 1975), aff’d, 527 F.2d 645 (3d Cir. 1976), a garden variety police excessive force case in which any reference to jus cogens norms of international law is notably absent. In Mathurin, the court observed in passing that “[h]ad the maltreatment in this case reached the level of outright torture or brutality, as plaintiffs claim, I would be more apt to accept the Government’s position herein and find the tortious acts to be outside the scope of the officers’ employment.” Id. at 116. Here, of course, the plaintiffs do not allege torture (at least in any commonly understood way) or physical brutality, and in all events a single court’s musings over what result it might reach under different facts and Virgin Islands respondeat superior law sheds no light at all on the immunity issues presented in this case. Mathurin assuredly does not support the sweeping proposition that “violations of jus cogens norms and fundamental human rights, are wholly outside the scope of employment.” Opposition at 11 {withheld by the court clerk from public inspection}.

Not only are the plaintiffs’ arguments contrary to the text, structure and purpose of the Westfall Act, they are contrary to sound policy more generally. Many kinds of official misconduct that may be styled violations of “jus cogens norms and fundamental human rights” also may be actionable in tort. Indeed, the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 (1994), abrogates the sovereign immunity of any foreign state “designated as a state sponsor of terrorism” and makes such states liable for damages “for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources * * * for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or {p.12} agency * * * .” 28 U.S.C. § 1605(a)(7)(B) (emphasis added). The plaintiffs’ proposal ignores the potential liability of such rogue states for jus cogens violations, and if adopted would allow such state sponsors of terrorism to escape liability precisely because of the abhorrent nature of their agents’ acts.

The plaintiffs simply have not alleged any conduct by these individual federal defendants that amount to violations of jus cogens norms of international law. Even were that not so, however, the conduct at issue here clearly occurred in the scope of employment, and Westfall Act immunity bars this suit.

C.

Pointing to the Westfall Act provision that preserves personal liability for a claim “which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized,” 28 U.S.C. § 2679(b)(2)(B), the plaintiffs argue that their claims resting upon asserted violations of international law are not barred by Westfall immunity. See Opposition at 13 {withheld by the court clerk from public inspection}. The Alien Tort Claims Act, 28 U.S.C. § 1350, triggers the Westfall Act exception to immunity, the plaintiffs say, because “[t]he plain meaning of the statute establishes that § 1350 is both a ‘jurisdictional grant and a private right to sue for tortuous violations of international law....’” Opposition at 13 (quoting Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D. Mass. 1995) (footnoted omitted)). Even assuming that the plaintiffs are right and that § 1350 is “both a jurisdictional grant and a private right to sue for tortuous violations of international law,” but see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 811-16 (D.C. Cir. 1984) (Bork, J., concurring) (concluding that § 1350 confers no private right of action), § 1350 nevertheless does not trigger the Westfall Act exception to immunity. As the text of the Westfall Act makes clear, immunity is available unless the claim at issue is one “which is [1] brought {p.13} for a violation of a statute of the United States [2] under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). The plaintiffs’ argument at best meets only the second of these conditions while ignoring the first. Because § 1350 at most does nothing more than provide a damages cause of action for the violation of rights conferred elsewhere (by the law of nations or a treaty of the United States) it cannot trigger the § 2679(b)(2)(B) exception to immunity. See Alvarez-Machain v. United States, 266 F.3d 1045, 1053-54 (9th Cir. 2001) {64kb.pdf, 64kb.pdf}, reh’g granted {6kb.pdf}, 284 F.3d 1039 (9th Cir. 2002) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}.

Thus, the plaintiffs confuse the damages cause of action that they claim § 1350 confers, with the source of substantive rights vindicated by a suit under § 1350. The source of substantive law and substantive rights in a suit brought under § 1350 is not § 1350 itself, but is instead the law of nations or a treaty of the United States. See Alvarez-Machain, 266 F.3d at 1053-54 {64kb.pdf, 64kb.pdf} {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. Accord Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980) (“we believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.”). Section 1350 therefore is one of those statutes that confers no substantive rights but that merely facilitates the bringing of an action for redress of rights elsewhere conferred. Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1994 & Supp. V), is another example. See, e.g., Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.”). Because § 1350 neither confers rights nor imposes obligations or duties such that it can be “violated,” it cannot trigger the § 2679(b)(2)(B) exception. See United States v. Smith, 499 U.S. {p.14} at 173. In sum, an action brought under § 1350 “by an alien, for a tort only, committed in violation of the law of nations or a treaty of the United States” cannot, in any meaningful way, be described as one that is “brought for a violation of a statute of the United States.” 28 U.S.C. § 2679(b)(2)(B). It follows that the plaintiffs’ assertion that “the ATCA is violated when there is a violation of international law and therefore is a ‘violation of a statute of the United States under which such action against an individual is otherwise authorized,’” Opposition at 13 {withheld by the court clerk from public inspection} (citation omitted), clearly is not correct.

While much about § 1350 is obscure, see Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985), it plainly does not confer upon aliens any new substantive rights. See Filartiga, 630 F.2d at 887. Equally plain is the text of § 2679(b)(2)(B) abrogating Westfall Act immunity only for statutes that both can be violated (because they confer rights or impose obligations or duties) and that also allow a damages action against individuals for their violation. The plain meaning of the relevant texts is dispositive of the plaintiffs’ international law-based claims here. But even if the relevant texts were ambiguous on this point, there is no apparent reason to think that Congress intended §§ 1350 and 2679(b)(2)(B) to combine to create the unique cause of action asserted in this case. The plaintiffs insist essentially that Congress intended that aliens can invoke § 1350 to challenge in court foreign and national security policies of the United States with which the alien plaintiffs disagree. The plaintiffs’ proposed cause of action is all the more remarkable in that it is available to foreign citizens (including potentially citizens of powers unfriendly to the United States) while being precluded to United States citizens, who generally cannot use under § 1350 for violations of treaties or the law of nations. See Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring). The Court of Appeals has expressly cautioned of the danger in recognizing damages causes of action by which foreign citizens could seek to hamper {p.15} United States foreign or national security policies with which they (or their governments) disagree. See Sanchez-Espinoza v. Reagan, 770 F.2d at 202. In the absence of any evidence that Congress ever intended to authorize such suits, that consideration should be dispositive of any ambiguity in statutory text. Cf. id. (“[W]e think that as a general matter the danger of foreign citizens’ using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.”). 5  Neither the plain language nor the apparent purposes of § 1350 support the plaintiffs’ suit here. To the contrary, Westfall Act immunity plainly applies, and all of the plaintiffs’ claims must be dismissed.

II.
Statute of Limitations

As an initial matter, the plaintiffs suggest that dismissals of complaints as time-barred is all but impossible — “the D.C. Circuit has consistently stated its hesitance ‘to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.’” Opposition at 29 {withheld by the court clerk from public inspection} (citing Adair v. England {45kb.pdf}, 183 F.Supp.2d 31 (D.D.C. 2002)). The Court of Appeals has more recently held, however, that where the complaint reveals that “the plaintiff has ‘sufficient notice of the conduct... {p.16} which is now asserted as the basis for [her] lawsuit,’” and does not bring suit within the relevant time period, dismissal on limitations grounds is entirely appropriate at the Rule 12(b)(6) stage. Hall v. Clinton {45kb.html/txt}, 285 F.3d 74, 82 (D.C. Cir. 2002) (quoting Fitzgerald v. Seamans, 553 F.2d 220, 228-29 (D.C. Cir. 1977) (editing original)). Moreover, “[t]he statute-of-limitations clock starts ticking when the plaintiff has sufficient ‘notice of the conduct ... which is now asserted as the basis for [her] lawsuit’.” Id. (citation omitted). As demonstrated in our opening memorandum, the complaint shows that the plaintiffs had sufficient notice of the conduct asserted as the basis of their lawsuit no later than 1973, and did not bring suit until nearly three decades had elapsed. See Memorandum of Points and Authorities at 17-19. 6 

#

The plaintiffs’ next argue that they have alleged “grievous and intentional violations of universally recognized crimes against humanity for which there are no applicable statute of limitations.” Opposition at 29 {withheld by the court clerk from public inspection}. See also id. at 30-31. The plaintiffs cite no case precedent adopting this position in civil damages suits brought in United States courts. See id. To the contrary, courts adjudicating claims premised on alleged violations of the law of nations consistently have recognized such claims to be subject to domestic statutes of limitations. See, e.g., Papa v. United States {29kb.pdf}, 281 F.3d 1004, 1012 (9th Cir. 2002); In re World War II Era Japanese Forced Labor Litigation {96kb.html/txt}, 164 F.Supp.2d 1160, 1180 (N.D. Cal. 2001); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1547 (N.D. Cal. 1987) {105kb.html}; Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 662 (D.N.J. 1999); Xuncax v. Gramajo, 886 F. {p.17} Supp. at 191-92; Sampson v. Federal Republic of Germany, 975 F.Supp. 1108, 1122 (N.D. Ill. 1997), aff’d, 250 F.3d 1145 (7th Cir. 2001). See also Wiwa v. Royal Dutch Petroleum Co. {151kb.html}, No. 96 CIV 8386 (S.D.N.Y. Feb. 28, 2002) (2002 WL 319887) (cited in Opposition at 31 {withheld by the court clerk from public inspection}). Congress apparently shares the courts’ view that even claims for grievous violations of international law norms should be subject to some limitations period. For example, Congress provided a statute of limitations even for claims of torture and extra judicial killing. See Torture Victims Protection Act of 1991, § 2(c), 106 Stat. 73 (1992). This perhaps reflects the fundamental principle that “[s]tatutes of limitations, which ‘are found and approved in all systems of enlightened jurisprudence,’ Wood v. Carpenter, 101 U.S. 135, 139, 25 L. Ed. 807 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’ Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S. Ct. 582, 586, 88 L. Ed. 788 (1944).” United States v. Kubrick, 444 U.S. 111, 117 (1979). In the light of this policy, judicial precedent, and Congress’ own action in the TVPA, the plaintiffs’ argument that domestic statutes of limitations do not apply to their claims should be rejected.

The plaintiffs next invoke the fraudulent concealment doctrine, which, they assert, tolls any statute of limitations applicable here. According to the plaintiffs, “Defendants’ actions against the Chagossians are part of a conspiracy to remove the indigenous population of the Chagos Archipelago from their homeland. Starting in 1965, Defendants and their co-conspirators, knowing their actions were wrongful, agreed to conceal the violations alleged in Plaintiffs’ complaint.” Opposition at 36 {withheld by the court clerk from public inspection}. {p.18}

Assuming the truth of the complaint’s well-well pleaded allegations, see Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), it is clear that the plaintiffs knew the fact of injury and its cause and that their claims accrued between 1965 and 1973 when their alleged exclusion from the Chagos Archipelago occurred. See Hall {45kb.html/txt}, 285 F.3d at 82. Equally clear is that the complaint’s allegations, again assuming them to be true, are insufficient to invoke the fraudulent concealment doctrine. “In order to establish fraudulent concealment and hence to toll the running of the statute of limitations, the plaintiff must show that the defendant took ‘some misleading, deceptive or otherwise contrived action’ to conceal information material to the plaintiff’s claim.” Sprint Communications Co. v. Federal Communications Comm’n {76kb.html/txt}, 76 F.3d 1221, 1281 (D.C. Cir. 1996) (citing Hobson v. Wilson, 737 F.2d 1, 34 (D.C. Cir. 1984)). In other words, “[t]he doctrine [of fraudulent concealment] is properly invoked only if a plaintiff establishes ‘affirmative conduct upon the part of the defendant which would, under the circumstances of the case, lead a reasonable person to believe that he did not have a claim for relief.’” Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415 (9th Cir. 1987) (citation omitted). Moreover, “[i]f the defendant’s wrongs are not ‘self-concealing (such as frauds),’ then the plaintiff must show that the defendant engaged in an act of concealment separate from the wrong itself.” Sprint {76kb.html/txt}, 76 F.3d at 1281 (citing Hobson, 737 F.2d at 33; Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1491-92 (D.C. Cir. 1989)).

In this case, the wrong alleged quite plainly is not “self-concealing,” and therefore requires a separate act of concealment. The plaintiffs assert in their opposition that “[f]or more than 30 years, Defendants have led the world to believe that the U.K. is the sole responsible party for the injuries Plaintiffs have suffered and continue to suffer.” Opposition at 34 {withheld by the court clerk from public inspection}. As the complaint makes clear, {p.19} however, the role of the United States was not concealed from the plaintiffs, who were aware of their removal and exclusion from Chagos. See Compl. ¶¶ 21, 32.i., 33. Further, plaintiff Mein “remembers that around 1966 a ship carrying Americans arrived in Diego Garcia,” Compl. ¶ 32.c, and that “the British Administrator, along with the principals in the Copra processing company, told her husband that Diego Garcia had been sold and all the residents had to leave.” Id. Further, “[s]oon thereafter, Ms. Mein recalls the increasing American presence on Diego Garcia. Id. ¶ 32.d. The complaint continues that “[t]he Americans brought bulldozers, tractors, tanks, and helicopters to the island and started constructions work. They banned the native population from many areas of Diego Garcia * * * .” Id. Perhaps most vividly, the complaint alleges that “Ms. Mein recalls Americans telling residents that if they did not leave, they would be bombed.” Id. ¶ 32.f. Finally, “[i]n September, 1971, individuals acting on behalf of the governments of the United States and the United Kingdom forced Ms. Mein, her family, and dozens of other Chagossians to board a boat — leaving their homes, their land, their family graves, and almost all of their possessions behind.” Id. ¶ 32.i. Plaintiff Bancoult’s alleged circumstances are perhaps less vivid, but as a matter of law, they are equally insufficient to invoke fraudulent concealment. After leaving Chagos, Mr. Bancoult’s family was forbidden to return and “told that communications had been severed with Chagos, that the islands had been sold, and that no more ships were to travel there.” Compl. ¶ 31.b. The plaintiffs have not alleged facts supporting their claim of fraudulent concealment. 7  {p.20}

Finally, the plaintiffs assert that they have alleged “continuing torts” for which the statute of limitations does not begin to run until the tortious conduct has ceased. See Opposition at 37 {withheld by the court clerk from public inspection}. In support of this argument, the plaintiffs rely on Page v. United States, 729 F.2d 818 (D.C. Cir. 1984), a case applying District of Columbia law. More recently “the District of Columbia Court of Appeals has specifically rejected the reasoning in Page, see National R.R. Passenger Corp. v. Krouse, 627 A.2d 489, 497-98 (D.C. 1993), and has held that ‘the policy disfavoring stale claims makes application of the “continuous tort” doctrine inappropriate.’” DeBerry v. First Government Mortgage and Investors Corp. {30kb.html/txt}, 170 F.3d 1105, 1111 n.9 (D.C. Cir. 1999) (quoting Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 883 (D.C. 1998)). Apart from that, the Court of Appeals has made clear that even when the continuing tort theory is available, it is dependent upon a continuing course of tortious conduct. In other words, a plaintiff cannot combine under the rubric of “continuing tort” an earlier action by the defendant that is tortious (but that occurred outside the limitations period) with some later action that is not tortious (but that did occur within the limitations period). See Rendall-Speranza v. Nassim {30kb.html/txt}, 107 F.3d 913, 920 (D.C. Cir. 1997). See also Neufeld v. Neufeld, 910 F.Supp. 977, 983 (S.D.N.Y. 1996) (“[T]he court must review those acts falling within the statute of {p.21} limitations to determine if they — independent of those acts that are a part of the offending course of conduct but fall outside the time bar — are sufficient to make out a claim * * * ; if they are not, then the offending action would have ceased prior to the statute of limitations period and the action would be barred as untimely.”) (cited with approval in Rendall-Speranza, 107 F.3d at 920).

In this case, it is apparent from the complaint that the plaintiffs — who claim that they were forced by the United States and United Kingdom governments to leave the Chagos Archipelago — rely upon later non-actionable conduct in an effort to evade dismissal on limitations grounds. The thrust of the supposed later wrongs is nothing more than the asserted failure of the United States and its officials after 1973 to make right the alleged wrongs occurring earlier. See Opposition at 37 {withheld by the court clerk from public inspection} (citing Compl. ¶¶ 24-30). It is well-established that “the mere failure to right a wrong and make plaintiff whole cannot be a continuing wrong which tolls the statute of limitations, for that is the purpose of any lawsuit and the exception would obliterate the rule.” Fitzgerald v. Seamans, 553 F.2d 220, 229-30 (D.C. Cir.1977).

III.
Political Question Doctrine

For the reasons set forth in our opening memorandum, the claims in this case present nonjusticiable political questions. See Memorandum of Points and Authorities at 8-13. The plaintiffs’ contrary arguments have been thoroughly answered by the United States in its reply memorandum, and the United States’ arguments are adopted here. There being no relevant constitutional provision, statute or self-executing treaty providing a rule of decision, this case clearly meets the test announced in Baker v. Carr, 369 U.S. 186, 217 (1962), for dismissal on the ground of non-justiciability. In the absence of such standards, whether and to what extent the United States conforms to principles of international law in its dealings with foreign governments and foreign citizens is a question committed to the so-called {p.22} political branches of government. See generally id. Indeed, the power of Executive Branch officials to disregard international law in the performance of constitutional functions is well-established. See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446, 1454 (11th Cir. 1986); United States v. Berrigan, 283 F.Supp. 336, 342 (D. Md. 1968) (“Whether the actions by the executive and legislative branches in utilizing our armed forces are in accord with international law is a question which necessarily must be left to the elected representatives of the people and not the judiciary. This is so even if the government’s actions are contrary to valid treaties to which the government is a signatory.”); Restatement (Third) Foreign Relations Law of the United States, § 115, Reporters Note 3 {ISBN: 0314301380, LCCN: 86020665, WorldCat} (“There is authority for the view that the President has the power, when acting within his constitutional authority, to disregard a rule of international law or an agreement of the United States.”); L. Henkin, Foreign Affairs and the Constitution, at 221-22 (1972) (“[T]he courts will give effect to acts within the constitutional powers of the political branches without regard to international law.”). Cf. Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988) (“Congress’ violation of a treaty is not cognizable in domestic court.”).

Moreover, contrary to what the plaintiffs seem to suggest (Opposition at 18-19 {withheld by the court clerk from public inspection}), tort law principles do not provide judicially discoverable and manageable standards for resolution of this case. “Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292 (1981). Yet “[s]o far as there is one central idea [in tort law] it would seem that it is that liability must be based upon conduct which is socially unreasonable.” Prosser & Keeton, § 2 at 6. Application of tort law principles to foreign and national security policy judgments therefore would entail ascertaining whether conduct in formulating and {p.23} carrying out such policy was “socially unreasonable” under some tort law formulation. Thereby the judiciary essentially is asked to substitute its judgment as to what is reasonable in the foreign and national security policy context for that of the Executive (to which the conduct of such policy is constitutionally committed. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)). Readily apparent is the “lack of judicially discoverable and manageable standards for resolving” claims that Executive Branch officials’ actions in carrying out foreign and national security policy were “socially unreasonable” in the tort sense. See Baker, 369 U.S. at 217. Similarly, it is impossible to review such actions “without an initial policy determination of a kind clearly for nonjudicial discretion.” Id. Only by assessing for itself the national interest at stake and balancing that interest against the risk of harm to individuals that might result from the means by which that policy was implemented could a court decide whether the United States’ alleged actions toward the plaintiffs somehow were “reasonable” or not. Viewed under international law or domestic tort law formulations, the plaintiffs’ claims quite plainly implicate non-justiciable questions and therefore must be dismissed. {p.24}

Conclusion

For the foregoing reasons, and for the reasons set forth in our opening Memorandum, the United States should be substituted as defendant in place of the individual federal defendants and the individual federal defendants’ Motion to Dismiss should be granted.

 

Dated: May 22, 2002 {p.25}

______________________

Certificate of Service

I hereby certify that on May 22, 2002, I served a true copy of the foregoing Memorandum of Points and Authorities by first class mail, postage pre-paid, addressed to counsel as follows:

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

Elaine Lacy
Trial Attorney
Torts Branch, Civil Division
Box 888 Washington, D.C. 20044

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

Cynthia T. Andreason
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
1875 Connecticut Ave. NW, Suite 1200
Washington, D.C. 20009-5728

 

{Signature}

Richard Montague

Footnotes

 1  The Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988), was enacted to replace what Congress thought was the unduly narrow absolute immunity from state tort suits allowed by the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), and is commonly referred to as the “Westfall Act.” See, e.g., Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419 (1995).

 2  Indeed, with the exception of former Secretary McNamara and Admiral Moorer, most of the individual federal defendants were not even in office at the time of the plaintiffs’ alleged evacuation from the Chagos Archipelago. See, e.g., Compl. ¶¶ 41-46.

 3  The result in Haddon v. United States {63kb.html/txt}, 68 F.3d at 1420, is not to the contrary. In Haddon, a divided panel of the Court of Appeals concluded that a White House electrician did not act in the scope of employment when threatening a White House chef over an EEO complaint filed by the latter. The court distinguished Lyon, Johnson and Howard University v. Best, 484 A.2d at 981, on the ground that unlike those cases, in which the tort arose from a dispute over the employee’s work, “the electrician’s threat did not stem from a dispute over his work.” Haddon, 68 F.3d at 1425. “[T]he electrician was not performing his assigned duties at the time of the incident,” and his threat against the chef “related to an EEO complaint not involving him in any way.” Id. Here, by contrast, the defendants’ alleged wrongful actions arose from, and directly related to, what the plaintiffs’ concede to be acts within the scope of federal employment, namely, acquiring a facility for United States military use in the Indian Ocean. See Opposition at 10 {withheld by the court clerk from public inspection}.

 4  The plaintiffs argue that the supposed “use of force” by the individual federal defendants (most of whom were not even in office at the time the plaintiffs were evacuated from the Chagos Archipelago, see Compl. ¶¶ 39-47) was “unexpected” and that “[t]he unexpected use of force is further evidenced by Congress’ complete surprise at the existence of an indigenous population on the Chagos Archipelago * * * .” Opposition at 10 {withheld by the court clerk from public inspection} (citation omitted). The relevant inquiry is not whether the employer (which in this case is not the Congress, but is the United States itself) is “surprised” to learn that an employee used force; it is whether the use of force was unexpected in the sense that it was not “foreseeable.” See Haddon {63kb.html/txt}, 68 F.3d at 1424. Torts are foreseeable when they are a direct outgrowth of an employee’s instructions or job assignment. See id. (citing Boykin, 484 A.2d at 562). As explained above, the conduct alleged in this case was a direct outgrowth of what the plaintiffs necessarily concede to be legitimate duties of officials in the Department of State, Defense and Navy: establishing a United States military base overseas in cooperation with another government. See Opposition at 9, 10 {withheld by the court clerk from public inspection}.

 5  For precisely this reason, the plaintiffs’ proposal (Opposition at 15-17 {withheld by the court clerk from public inspection}) that the Court imply a Bivens-type damages cause of action, see Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for alleged violations of international law must be rejected. The Supreme Court’s “more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). See also Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515, 519-20 (2001). Likewise, the Court of Appeals has expressly refused to imply a Bivens remedy on behalf of Nicaraguan citizens alleging constitutional violations by United States officials. See Sanchez-Espinoza, 770 F.2d at 208. In the face of precedent rejecting an implied Bivens-type remedy in contexts such as these, the plaintiffs’ even more innovative proposal to create an implied international law Bivens cause of action should be rejected. If there is to be a damages remedy for Executive Branch officials’ international law violations, that policy judgment is for Congress to make. See id.

 6  The plaintiffs were not required to know the specific identities of the government officials involved in the events at issue in order for their claims to accrue. See, e.g., Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986).

 7  Also unavailing is the plaintiffs’ arguments they have alleged a civil conspiracy and that fraudulent concealment by one conspirator tolls the statute of limitations as to all. See Opposition at 34-35 {withheld by the court clerk from public inspection}. “The two essential elements of civil conspiracy are (1) ‘an agreement to take part in an unlawful action or a lawful action in an unlawful manner’; and (2) ‘an overt tortious act in furtherance of the agreement that causes injury.’” Hall {45kb.html/txt}, 285 F.3d at 82-83 (quoting Halberstam v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983)). The plaintiffs do not allege any facts from which an inference of “an {p.20} agreement to take part in an unlawful action” on the part of the individual defendants reasonably could be inferred. The plaintiffs allege what they say were unlawful actions occurring between 1967 and 1973, see Compl. ¶¶ 21, 22, and that a succession of government officials in the Departments of Defense, State and Navy, did nothing to make things right. See id. ¶¶ 39-46. Just as an alleged tortfeasor’s failure to “own up” is not fraudulent concealment, however, see Pocahontas Supreme Coal Co v. Bethlehem Steel Corp., 828 F.2d 211, 218 (4th Cir. 1987), it follows that other parties’ failure expose the wrong cannot make them liable for “conspiracy” to conceal.

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted Dec. 6 2002. Updated May 16 2008.

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