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Full-text: August 19 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Aug 19 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.)
 )

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

Introduction

On December 20, 2001, Plaintiffs, the indigenous population of the Chagos Archipelago and their descendants (“Chagossians”), filed a class action complaint in this Court for forced relocation; torture; racial discrimination; cruel, inhuman, and degrading treatment; genocide; intentional infliction of emotional distress; negligence; and trespass. The Defendants include several individual federal defendants, the United States of America, Halliburton Corporation, and De Chazal Du Mee (“DCDM”). ¶

On February 14, 2002, Plaintiffs also filed a Motion for Preliminary Injunction against two of the Defendants in this action, the United States and DCDM. ¶

Defendant United States opposed both Plaintiffs’ Complaint and Preliminary Injunction on grounds of, inter alia, standing. Defendant United States’ standing argument asserts that 1) there is no causal connection between Plaintiffs’ injuries and the United States’ conduct and 2) Plaintiffs’ injuries would not be redressed by a ruling in their favor. See Def. United States of America’s Mot. to Dismiss (“Mot. to Dismiss”) at 29; Def. United States’ Opp. to Pls.’ Mot. for Preliminary Injunction (“Opp. to Preliminary Injunction”) at 10. {p.2}

After the final Reply Briefs were filed for both the Preliminary Injunction and Defendant United States’ Motion to Dismiss, Plaintiffs received a letter from the Foreign & Commonwealth Office of the United Kingdom that provided new facts bearing directly on the standing argument at issue in the aforementioned pleadings. 1  In addition, Olivier Bancoult, a named plaintiff in this action, attended a meeting at the Foreign & Commonwealth Office during which additional new facts, also bearing directly on standing, were discussed. As with the letter from the Foreign & Commonwealth Office, the meeting occurred after all reply briefs were filed for the Preliminary Injunction and the Motion to Dismiss. 2 

After receiving this new information, Plaintiffs properly filed, on August 1, 2002, a Motion for Leave to File Supplemental Information Essential to the Determination of Plaintiffs’ Motion for Preliminary Injunction and Plaintiffs’ Opposition to Defendant United States’ Motion to Dismiss (“Supplemental Motion”). Through this motion Plaintiffs seek to supplement prior pleadings with the Foreign & Commonwealth Office Letter and meeting minutes in order to provide the Court the benefit of having all relevant information related to the instant action. ¶

Despite the fact that these documents provide facts bearing directly on the standing issue raised by the Defendant, the United States has opposed the motion on the grounds that it is an impermissible surreply to its Motion to Dismiss. ¶

Plaintiffs’ Supplemental Motion should not be considered a surreply to any prior pleading because it does not present any new issues or {p.3} arguments and instead simply presents new facts relevant to issues already raised but not previously available to the Plaintiffs or the Court.

Argument

Defendant United States, in its Opposition to Plaintiffs’ Supplemental Motion (“Opposition”), mischaracterizes Plaintiffs’ Supplemental Motion as a surreply to Defendant United States’ Motion to Dismiss. The United States argues that Plaintiffs’ Supplemental Motion should be denied because Defendant United States raised no new issues in its Reply brief that would make a surreply by Plaintiffs appropriate. Opp’n at 2. Furthermore, Defendant United States incorrectly asserts that Plaintiffs Supplemental Motion seeks to reargue the issue of standing raised in earlier pleadings. 3  Id.

Plaintiffs’ Supplemental Motion is not, as Defendant United States’ asserts, a “thinly-veiled” submission of a surreply to Defendant United States’ Motion to Dismiss. Id. at 1. A surreply brief, as noted by Defendant United States, is granted when the movant “would be unable to contest matters presented to the court for the first time in the opposing party’s reply.” {p.4} Lewis v. Rumsfeld {103kb.pdf}, 154 F.Supp.2d 56, 61 (D.D.C. 2001). Therefore, as Defendant United States argues, a surreply should not reargue points already raised in prior pleadings. Opposition at 2-3. ¶

Plaintiffs’ Supplemental Motion does not seek to reargue any issues raised in prior pleadings. Instead Plaintiffs’ Motion only attempts to supplement the standing arguments raised in the Preliminary Injunction and Motion to Dismiss with essential facts relating to recent events that had not occurred at the time of the last briefs filed in either of the aforementioned pleadings. See generally Pls.’ Supplemental Mot. Since Plaintiffs’ Supplemental Motion does not attempt to argue any issues at all, it should not be construed as a disguised attempt to file a surreply.

Defendant United States’ argument fails to consider the appropriateness of Plaintiffs’ Supplemental Motion under the Federal Rules of Civil Procedure, which states that ¶

“[u]pon motion of a party the court may ... permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” ¶

Fed. R. Civ. P. 15(d). An essential purpose of Rule 15(d) is to allow parties to provide the court with new facts that update prior pleadings. See U.S. v. Hicks {103kb.pdf}, 283 F.3d 380, 385-86 (D.C. Cir. 2002) (citing 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1504 at 177-183).

Plaintiffs’ Supplemental Motion satisfies Rule 15(d) because it seeks to present facts to the Court regarding events that occurred after the date of the pleadings Plaintiffs seek to supplement. The letter and meeting minutes provide new facts regarding Defendant United States’ control over the Chagos Archipelago. This control was asserted in Plaintiffs’ Complaint and Preliminary Injunction and was adamantly denied by Defendant United States in its Motion to Dismiss Plaintiffs’ Complaint and its Opposition to Plaintiffs’ Preliminary Injunction. Defendant United States argued that Plaintiffs lacked standing as a result of the United States’ {p.5} lack of control over the Chagos Archipelago. ¶

The supplemental information attached to Plaintiffs’ Supplemental Motion simply provides new facts to the Court, which not only update prior pleadings but also are directly relevant to issues at hand. For these reasons, Plaintiffs’ Supplemental Motion is not only appropriate under Rule 15(d) but satisfies one of the rule’s purposes.

Conclusion

For the foregoing reasons, Plaintiffs’ Motion should be granted.


Signature: Michael E. Tigar

 

Respectfully submitted,

{Signature}

Michael E. Tigar
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Washington, D.C. 20016
Bar Identification No. 103762

Dated: August 19, 2002 {p.6}

______________________

Certificate of Service

I, Meghan A. Colloton, hereby certify that on this 19th day of August, 2002, I caused to be served by first-class mail, postage pre-paid, a true copy of the foregoing Plaintiffs’ Response to United States’ Opposition to “Plaintiffs’ Motion for Leave to File Supplemental Information...” on:

Elaine Marzetta Lacy
U.S. Department of Justice
Torts Branch
1331 Pennsylvania Avenue, NW
Washington, D.C. 20004

Attorney for Defendant United States of America

Richard Montague
U.S. Department of Justice
Civil Division
Suite 8122
1425 New York Avenue, N.W.
Washington, D.C. 20005

Attorney for Individual Federal Defendants

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

Attorney for Halliburton Corporation

Cynthia T. Andreason
LeBoeuf, Lamb, Greene & MacRae, LLP
1875 Connecticut Ave. N.W.
Washington, DC 20009-5728

Attorney for Defendant De Chazal Du Mee

 

Signature: Meghan A. Colloton

{Signature}

Meghan A. Colloton

Footnotes

Each footnote appears entirely on the same page with its text reference, except note-2, which appears on the following page.  CJHjr

 1  The final Reply brief {withheld by the court clerk from public inspection} for Plaintiffs’ Motion for Preliminary Injunction was filed on March 4, 2002 and the final Reply brief for Defendant United States’ Motion to Dismiss was filed on May 22, 2002. These dates are well in advance of the dates of the letter from Baroness Amos, with which Plaintiffs seek to supplement their pleadings, which was written on June 7, 2002. See Letter, Pls.’ Mot. for Leave to File Supplemental Information Essential to the Determination of Pls.’ Mot. for Preliminary Injunction and Pls.’ Opp. to Def. United States’ Mot. to Dismiss (“Supplemental Motion”) Attachment 1.

 2  The Report of the Meeting at the Foreign and Commonwealth Office attached to Plaintiffs’ Motion details a meeting that occurred on June 13, 2002. See Meeting Minutes, Supplemental Mot. Attach.2.

 3  Defendant United States also states that all of Plaintiffs’ pleadings implicitly argue that this Court should find the United States to be the de facto sovereign over the Chagos island of Diego Garcia. Presumably Defendant United States makes this statement so it can bring the Courts attention to the decision in Rasul v. Bush {70kb.pdf}, 2002 WL 1760825, {215} F.Supp.2d {55} (D.D.C. July 30, 2002) {reversed June 28 2004 (U.S., No. 03-343) (521kb.pdf)}, in which the Court addressed the issue of whether or not the United States is the de facto sovereign of the U.S.-leased Naval Base at Guantanamo Bay for purposes of finding jurisdiction to hear petitions for writs of habeas corpus. In Rasul, the Court held that the base at Guantanamo Bay was “not akin to a territory of the United States” and therefore the United States did not exercise de facto sovereignty over the base. To the extent that Defendant United States is asking this Court, based on Rasul, to find that the U.S. is not the de facto sovereign of Diego Garcia, Plaintiffs note that unlike the plaintiffs in Rasul, they do not seek to rely on the possible de facto sovereignty of the United States over Diego Garcia to establish jurisdiction. See Complaint ¶ 3. Furthermore, Defendant United States is itself attempting to supplement its prior pleadings with an intervening judicial decision.

______________________

Update: Al Odah v. United States (12 Kuwaiti nationals) {82kb.html, 111kb.pdf, 111kb.pdf}, consolidating Rasul v. Bush (2 U.K. nationals, 1 Australian) and Habib v. Bush (1 Australian), 321 F.3d 1134 (D.C. Cir., No. 02-5251, 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), oral arugment April 20 2004 {163kb.pdf}, reversed (June 28 2004) {521kb.pdf} (briefs).

CJHjr

 

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 (   ), added paragraphing (for ease of reading) marked with this trailing paragraph symbol: ¶ .

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.

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Posted Dec. 9 2002. Updated May 30 2008.

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