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Full-text: August 12 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Aug 12 2002 Nancy Mayer Whittington, Clerk U.S. District Court


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

Olivier Bancoult, et al.,)
Robert S. Mcnamara, et al.,)

United States’ Opposition to “Plaintiffs’ Motion for Leave to File Supplemental Information ...” {sic: ...}

More than two months after the United States’ Reply in Support of Its Motion to Dismiss and five months after the Plaintiffs’ Reply {withheld by the court clerk from public inspection} in Support of Their Motion for Preliminary Injunction were filed, Plaintiffs now seek to supplement their filings with three items: a declaration by the named plaintiff which contains a report by a third person; a letter from the Parliamentary Under Secretary of State of the United Kingdom to plaintiffs’ London attorneys 1 ; and an eight page Memorandum of Law, ostensibly submitted in support of the instant motion, which reargues plaintiffs’ position on standing. Plaintiffs’ motion should be denied.

Plaintiffs’ submission is nothing more or less than a thinly-veiled attempt to submit a surreply brief in opposition to the United States’ motion to dismiss. {p.2} Submission of a surreply is appropriate only where it is necessary to enable the non-moving party to respond to matters raised for the first time in the moving party’s reply brief. See Lewis v. Rumsfeld {103kb.pdf}, 154 F.Supp.2d 56, 61 (D.D.C. 2001). In the instant case, the United States raised no new issues or arguments in its Reply brief.

Plaintiffs use the present would-be submission to argue the same points they raised in their earlier pleadings — namely that the United States could, if it wished, exercise control over the Chagossians’ access to Diego Garcia through diplomatic suasion. Plaintiffs allege that the United Kingdom has no strategic interest in Diego Garcia and acts only at the behest of the United States. 2  Both parties have already addressed the legal significance of this factual assertion, 3  and untimely additional {p.3} submissions should not be permitted. Indeed, plaintiffs’ proposed submissions simply imply that the Court should recognize United States’ de facto sovereignty over Diego Garcia, an argument that is implicit in all their pleadings. 4 

As a final matter, the United States invites the Court’s attention to a recent decision of this Court, Rasul v. Bush {70kb.pdf}, 2002 WL 1760825, {215} F.Supp.2d {55} (D.D.C. July 30, 2002), regarding the United States’ detention of certain individuals at the United States’ leased Naval Base at Guantanamo Bay, Cuba. {p.4}

Update: Al Odah v. United States (No. 02-5251) (12 Kuwaiti nationals: Fawzi Khalid Abdullah Fahad Al Odah, Omar Rajab Amin, Nasser Nijer Naser Al Mutairi, Khalid Abdullah Mishal Al Mutairi, Abdullah Kamal Abdullah Kamal Al Kandari, Abdulaziz Sayer Owain Al Shammari, Abdullah Saleh Ali Al Ajmi, Mohammed Funaitel Al Dihani, Fayiz Mohammed Ahmed Al Kandari, Fwad Mahmoud Al Rabiah, Adil Zamil Abdull Mohssin Al Zamil, and Saad Madai Saad Al Azmi) {82kb.html, 111kb.pdf, 111kb.pdf}, consolidating Rasul v. Bush (No. 02-5288) (2 U.K. nationals: Shafiq Rasul, Asif Iqbal, and 1 Australian: David Hicks) and Habib v. Bush (No. 02-5284) (1 Australian: Mamdough Habib), 321 F.3d 1134 (D.C. Cir., Nos. 02-5251, 02-5284, 02-5288, March 11 2003), rehearing denied without opinion June 2 2003, certiorari granted {24kb.html, 81kb.pdf} Nov. 10 2003, consolidating Rasul (including Habib) (U.S., No. 03-334) and Al Odah U.S., No. 03-343) (briefs), oral arugment April 20 2004 {163kb.pdf}, reversed, sub nom., Rasul v. Bush, 542 U.S. 466 {findlaw, justia, altlaw} (U.S., No. 03-334, 03-343, June 28 2004) {slip opinions, 2003, 785kb.pdf} (U.S.: United States Reports, volume 542) {3mb.pdf}.



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


Paul F. Figley
Deputy Director
Torts Branch, Civil Division


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



Certificate of Service

I hereby certify that on August 12, 2002, I mailed by first class mail, a true copy of the foregoing United States’ Opposition to “Plaintiffs’ Motion for Leave to File Supplemental Information ...” (and sent by telecopier to Michael Tigar) to the following counsel of record:

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



Elaine Marzetta Lacy


Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  The letter states that the Chagossians will not be permitted to visit the island of Diego Garcia in an upcoming, U.K. sponsored visit, because “The US authorities [ ] have confirmed that they cannot agree to it at the present time.” Letter, attached to Pls.’ Instant Memo. Mr. Bancoult’s declaration states (in hearsay) that a Charles Hamilton, an Administrator of the British Indian Ocean Territory, stated that the Chagossians could not visit Diego Garcia because “the U.K. cannot override the agreement; that decision is final, treaty obligations will NOT permit a visit.” Declaration attached to Pls.’ Instant Memo.

 2  See e.g., Complaint ¶ 9 (“the United States leases the Chagos islands and effectively controls all of Diego Garcia.”); Plaintiffs’ Opposition to U.S. Mot. to Dismiss, p.1 (“the United States has effective control over Diego Garcia”); p.22 (“United States has effective control of Diego Garcia”); and p.24, stating:

“[T]he United States has been the main proponent of BIOT and the military installation on Diego Garcia since the initial stages of development. The United Kingdom formed BIOT at the urging of the United States for the very purpose of allowing the United States to develop a military installation. See Pls.’ Prelim. Inj. Reply Attach. 1 ¶ 4. British participation in the development of Diego Garcia was merely a ploy .... the United Kingdom did not even consider Diego Garcia to be of any particular strategic importance at .... This state of relative interests in control has seemingly remained the same.”

Id. (Emphasis added.)

 3  See, e.g., Plaintiffs’ Opposition to Defendant United States of America’s Motion to Dismiss at pp.24-25; see also portions of plaintiffs’ prior briefs cited at pp.4-7 of their instant submission; United States’ Opposition to Motion for Preliminary Injunction at pp.11-13; United States’ Memorandum in Support of Motion to Dismiss at pp.30-32; United States’ Reply in Support of Motion to Dismiss at 22-24.

 4  If the Court grants the plaintiffs’ request to supplement, the United States should be granted leave to respond.


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

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, text beside a green bar (   ).

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.


Posted Dec. 9 2002. Updated June 23 2008.


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