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Full-text: August 1 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Aug 1 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’ 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

Plaintiffs’ respectfully request leave to file supplemental materials in support of Plaintiffs’ Motion for Preliminary Injunction and Plaintiffs’ Opposition to Defendant United States of America’s Motion to Dismiss.

Plaintiffs request such leave in order to inform the Court of recent events, which are essential to the determination of this action and show that Defendant United States of America has been less than candid with the Court in its filings.

Plaintiffs have complied with D.C. LCvR 7.1(m). On July 30, 2002, Counsel for Plaintiffs had a conference by telephone with Counsel with the U.S. Department of Justice, Torts Branch of the Civil Division, concerning Plaintiffs’ motion for leave to file supplemental materials with this Court. On July 31, 2002, Counsel for Plaintiffs faxed the supplemental materials that concern Plaintiffs’ motion to Counsel with the U.S. Department of Justice, Torts Branch of the Civil Division.

On July 31, 2002, Counsel with the U.S. Department of Justice, Torts Branch of the Civil Division, replied by fax that they will oppose Plaintiffs’ motion.

Signature: Michael E. Tigar

 

Respectfully submitted,


{Signature}

Michael E. Tigar
Bar Identification # 103762
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Room 460
Washington, D.C. 20016
(202) 274-4088

Dated August 1, 2002

 

{Separate document, case caption omitted}

Plaintiffs’ Memorandum in support of plaintiffs’ 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

Introduction

Plaintiffs seek to supplement the record with recently received information that directly contradicts statements made by Defendant United States of America in its Opposition to Plaintiffs’ Motion for Preliminary Injunction (“Opposition”) and in its Motion to Dismiss. This supplemental information is essential to inform the Court of matters vital to a determination of both Plaintiffs’ Preliminary Injunction and Defendant United States’ Motion to Dismiss.

Defendant United States alleges in both its Opposition and in its Motion to Dismiss that Plaintiffs lack the traceability and redressability elements of a standing inquiry to seek injunctive relief from the United States. 1  Defendant United States asserts that it has no power to grant Plaintiffs’ requested relief by claiming that the United Kingdom (U.K.) is the sole legal entity {p.2} responsible for the exclusion of Plaintiffs from the Chagos Archipelago and discriminatory hiring practices on the Chagos island of Diego Garcia.

The recently acquired information Plaintiffs seek to submit to the Court is essential to the traceability and redressability elements of a standing inquiry and shows conclusively that Defendant United States, not the U.K., is in actual control of the actions Plaintiffs seek to enjoin.

Procedural history

On December 20, 2001, Plaintiffs filed a class action complaint in this Court on behalf of the indigenous population of the Chagos Archipelago and their descendants (“Chagossians”) 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”). The Chagos Archipelago is located in the Indian Ocean and includes the island of Diego Garcia, which currently houses a U.S. Naval base.

In 1965, at the request of the U.S. Government, the U.K. detached the Chagos Archipelago from Mauritius and included the islands in the newly formed British Indian Ocean Territory (“BIOT”). Between 1965 and 1973, the Chagossians were forcibly removed from their homeland and stranded without any means for survival on the islands of Mauritius and the Seychelles. The Chagossians were forced to leave behind homes, personal and real property, family graves, churches, and their culture. Non-Chagossians are permitted access to the outer islands of the Chagos Archipelago 2  and recruited for employment on the Diego Garcia military facility; however, Defendants continue the forced exile of the Chagossian population by systematically excluding all Chagossians from employment opportunities on Diego Garcia and access to the entire Chagos Archipelago. {p.3}

On February 14, 2002, Plaintiffs filed a motion for preliminary injunction against Defendant United States of America and Defendant DCDM to provide the Chagossians with access equal to that enjoyed by non-Chagossians to the outer islands of the Chagos Archipelago and halt the discriminatory hiring practices of Defendant DCDM and Defendant United States, which automatically disqualify all Chagossians from consideration for civilian employment opportunities on Diego Garcia. On February 25, 2002, Defendant United States filed its memorandum in opposition to Plaintiffs’ Motion for Preliminary Injunction, and Plaintiffs replied on March 4, 2002. Defendant DCDM has not responded to the preliminary injunction and instead filed a Motion to Dismiss the Complaint for want of personal jurisdiction on March 27, 2002.

Although the U.S. Government has substituted itself for all of the individual defendants 3 , separate motions to dismiss were filed on March 21, 2002, one by the U.S. Government, and one by the Individual Federal Defendants. Plaintiffs replied to both of these motions on April 22, 2002. Both the Individual Federal Defendants and the United States Government replied on May 22, 2002. All of the motions set forth above are pending before this Court.

I.
Statements in motion to dismiss by defendant United States

Plaintiffs’ Complaint requested that the Court grant, among other things, injunctive relief providing that Plaintiffs be allowed to return to the Chagos Archipelago (“Chagos”) and be allowed limited commercial access to the airstrip on the island of Diego Garcia located in the Archipelago. Compl. ¶ 104.

Defendant United States alleged in its Motion to Dismiss that the Plaintiffs lacked standing for such injunctive relief because “it is the British, not the United {p.4} States, who have the power, both legal and actual, to admit or exclude the plaintiffs from the Archipelago.” See Def. United States’ Mot. to Dismiss at 31 (emphasis added).

These statements by Defendant United States are simply not true. By Defendant United States’ own admission, it does not want the Chagossians returning to the Archipelago 4  and, as discussed below, recent statements by the Foreign and Commonwealth Office of the United Kingdom indicate that Defendant United States is, and has been, directly involved in preventing Plaintiffs’ sought relief.

The information Plaintiffs seek to submit to the Court indicates that Defendant United States does in fact have actual power to admit and exclude Plaintiffs from the Archipelago.

II.
Statements in opposition to preliminary injunction by defendant United States

In February 2002, Plaintiffs filed a Motion for Preliminary Injunction requesting that the Court order Defendant United States to halt its discriminatory treatment of Plaintiffs. Specifically, Plaintiffs requested access to the Chagos Archipelago and jobs on Diego Garcia equal to that enjoyed by non-Chagossian civilians. Pls.’ Mot. for Prelim. Inj. para 1. Plaintiffs assert that Defendant United States denies Plaintiffs access to the entire Chagos Archipelago while non-Chagossian vacationers are allowed to stay on the outer islands of the Archipelago for extended periods. Pls.’ Mem. in Supp. of Pls.’ Mot. for Prelim. Inj. ¶  6, at 3; Pls.’ Reply to Def. United States’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 15 {withheld by the court clerk from public inspection}. Regarding discriminatory hiring practices, Defendant United States, through Defendant DCDM, hires civilians for employment on its military base located on the Chagos island of Diego Garcia; however, Chagossians are {p.5} screened out and denied the opportunity to even apply for employment on the island. Pls.’ Mem. in Supp. of Pls.’ Mot. for Prelim. Inj. ¶ 7, at 5; Pls.’ Reply to Def. United States’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 14-15 {withheld by the court clerk from public inspection}. Plaintiffs requested in their Motion for Preliminary Injunction that this Court enjoin Defendant United States from continuing these discriminatory practices against Plaintiffs.

In response to the facts set forth above in Plaintiffs’ Motion for Preliminary Injunction, Defendant United States argued that Plaintiffs do not meet the traceability and redressablity elements of a standing inquiry because “it is not within United States’ power to grant or deny access to the Archipelago.” Def. United States’ Opp. to Pls.’ Mot. for Prel. Inj. (“Opposition”) at 10. Defendant United States asserted “that issuing the injunction would be an exercise in futility, because it is Britain, not the United States, that controls both physical and legal access to the Archipelago.” Id. at 10-11. Defendant United States further alleged that British control included strict control of access to Diego Garcia. Id. at 11-12. Finally, Defendant United States denied that it discriminated in its hiring practices for Diego Garcia stating that Captain Lucarelli, a Captain stationed at Diego Garcia, knew of no such practice of denying Chagossians employment on the military base. Opposition at 6 (citing Lucarelli Decl. ¶¶ 18-20). But see Pls.’ Reply to Def. United States’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 2-3 {withheld by the court clerk from public inspection} (stating that Defendant United States failed to deny discriminatory hiring practices and “[w]ith all due respect to Captain Lucarelli, upon whose Declaration the Opposition heavily relies, the notion that a single U.S. Navy Captain currently stationed on Diego Garcia ‘denies any knowledge of Chagossian people being excluded from consideration for employment’, is hardly dispositive of the issue.”) (citation omitted).

As with Defendant United States’ Motion to Dismiss, Defendant United States’ assertions that the U.K. is solely in charge of denying Plaintiffs’ access to the {p.6} Archipelago are directly contradicted by the supplemental information Plaintiffs seek to submit to the Court by this motion.

III.
Supplemental information contradicting statements of defendant United States

As discussed above, Defendant United States would have this Court believe that the U. K. is the sole party controlling Plaintiffs’ fate. Plaintiffs hereby present information relating to two recent events that indicate the British Government does not have solitary control of access to Diego Garcia. First, during the month of October 2002, the British Government is chartering a ship for a 10-14 day period to take a group of Chagossians to the Chagos Archipelago. The Chagossians requested that on this trip they be able to visit all of the islands, including Diego Garcia, where their ancestral homes, graves, and churches still stand. In a response letter to Richard Gifford, Plaintiffs’ attorney in London, Baroness Amos, Parliamentary Under Secretary of State of the United Kingdom, stated that the British had consulted Defendant United States on the matter and that Defendant United States would not agree to allow the Chagossians to visit Diego Garcia on this trip. See Letter from U.K. Foreign & Commonwealth Office, Attach. 1, para. 4.

Second, during a meeting at the Foreign Commonwealth Office on June 13, 2002 between Charles Hamilton, Administrator of the British Indian Ocean Territory (BIOT), and Olivier Bancoult, a named plaintiff in this action, Mr. Hamilton stated that the British Government had asked Defendant United States permission for the Chagossians to visit Diego Garcia in October 2002. See Meeting Report, Attach. 2. This request was “flatly refused” by Defendant United States and Mr. Hamilton stated that the U.K. could not override such a final decision. See id. {p.7}

These two statements by British officials directly contradict Defendant United States’ assertion that it has no control over access to the Chagos Archipelago and that it is the U.K. instead that has sole legal and actual control over such access. Furthermore, the Meeting Report states that the British Government has insisted that Chagossians and Mauritians be allowed to work on Diego Garcia. See id. As Plaintiffs have shown, Chagossians are nevertheless refused jobs on Diego Garcia by Defendant DCDM, the company employed by Defendant United States to hire civilians to work on the island. See Pls.’ Mem. in Supp. of Pls.’ Mot. for Prelim. Inj. ¶ 7, at 5. If the British Government has insisted that Chagossians and Mauritians be considered for employment on Diego Garcia, it must be that Defendant United States has directed Defendant DCDM to screen Chagossians out of consideration for employment opportunities on the U.S. military base.

The U.K. statements discussed above indicate that Defendant United States is in fact in a position of controlling access to the Chagos Archipelago. For these reasons, Defendant United States’ argument that the Chagossian Plaintiffs do not meet the traceability and redressability elements of a standing inquiry is founded on false or, at a minimum, incomplete information.

Conclusion

Plaintiffs respectfully request that this Court supplement both Plaintiffs’ Motion for Preliminary Injunction and Plaintiffs’ Opposition to Defendant United States’ Motion to Dismiss with the foregoing information. For the reasons stated above and in Plaintiffs’ Motion for Preliminary Injunction, Plaintiffs’ request for a preliminary injunction should be granted. In addition, for the reasons stated above and in Plaintiffs’ Opposition to Defendant United States’ Motion to Dismiss, Defendant United States’ Motion to Dismiss should be denied. {p.8}

Signature: Michael E. Tigar

 

Respectfully submitted,


{Signature}

Michael E. Tigar
Bar Identification # 103762
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Room 460
Washington, D.C. 20016
(202) 274-4088

Dated August 1, 2002

{p.9}

 

Foreign & Commonwealth Office London SW1A 2AH From the Parliamentary Under Secretary of  State

{Attachment-1: Full-text}:

7 June 2002


Richard Gifford Esq       12 JUN 2002
Sheridans, Solicitors
14 Red Lion Square
London
WC1R 4QL


Dear Richard Gifford,

 

{Dear Richard Gifford,}

You wrote to Charles Hamilton in our Overseas Territories Department on 10 May about the proposed visit by a group of about 100 Chagossians to the Chagos Archipelago.

You raised a number of issues. We plan to charter a ship, the M/S Mauritius Trochetia, for a 10-14 day period from 7 October. Since the vessel belongs to a Mauritian organisation, we shall have to secure the Mauritian Government’s agreement to the visit. The visit will be to Peros Banhos and Salomons only. Charles Hamilton, as BIOT Administrator, will accompany the Chagossians to the two islands. As the Chagossians wish to visit their ancestral graves, two Catholic priests may also form part of the group. (As you say, they will need permits which will be issued when the necessary personal details have been submitted to the Commissioner).

We want to ensure there are no unnecessary intrusions on the privacy of the visiting group. For this reason I cannot agree to your proposal that other non-Chagossians, including journalists, should participate. The visit is being organised for the benefit of the Chagossian community, and there may in any event be difficulty in accommodating all the Chagossians who wish to take part. Whilst acknowledging Mr Bancoult’s role as representative of the largest group of Chagossians, we are aware of three other groups in Mauritius whose members may also wish to take part. Our High Commissioner will be inviting representatives of all sections of the Chagossian community to work together to draw up a joint passenger list. We shall also draw the attention of the Chagossian community in the Seychelles to the visit. They too may wish to nominate participants.

I have given serious consideration to your request to include the island of Diego Garcia in the visit. We have consulted the US authorities who have confirmed that they cannot agree to it at the present time. I realise that this will be disappointing news for your clients.

On the question of interim and long term relief, I should remind you that the British Government has already paid over £4.5 million for the benefit of the Chagossians. This sum was agreed at the time by the Chagossians to be a full and final settlement of all claims. When the work on the feasibility studies is complete, we shall have a better idea of the way forward.

I am looking into your suggestion of reception committees for those Chagossians who choose to come to the UK. I will be in touch again on this point.

You should approach the Secretariat of the UK Overseas Territories Association (UKOTA) about membership of that organisation.

I do not accept that there has been any delay on the part of the British High Commission in Mauritius in issuing British Citizen passports under the British Overseas Territories Act 2002. The relevant provisions of that Act came into force only on 21 May and the issue of passports has been proceeding smoothly since then. There is no requirement for the British High Commission to register British citizens.

Finally, you suggest that I hold a further meeting with Mr Bancoult in the second half of July. I would welcome this. My office will be in touch to agree a date.

Signature: Yours sincerely, Valerie Amos

 

Yours sincerely,


{Signature}

Valerie Amos
Baroness Amos

 

{Attachment-2: Full-text}:

Supreme Court of Mauritius

In the Supreme Court of Mauritius

I, Louis Olivier Bancoult, an Electrician, of Royal Road, Cassis, Port-Louis, holding a Mauritian National Identity Card No. B150264800002F

 

Make Oath and Say That

1.  On Thursday June 13, 2002, I attended an informal meeting at the Foreign and Commonwealth Office located at King Charles II Street in London, England.

2.  Charles Hamilton, an Administrator of the British Indian Ocean Territory, John Houghton, a representative of the United Kingdom Chagos Support Association, and Anwar Bhayat, a long time friend of mine were also in attendance at the meeting.

3.  Attached hereunder is a report drawn up by John Houghton following the June 13th meeting. The report reflects a true and accurate account of what transpired in the meeting.

“Report of an informal Meeting at the
Foreign and Commonwealth Office,
King Charles II St London SW1;
Thursday 13 June 2002;

Present,

Charles Hamilton, Administrator, British Indian Ocean Territory.

Olivier Bancoult, Chairman, Chagos Refugees Group.

Anwar Bhayat, long time friend of O.B.

John Houghton, as representative of U.K. Chagos Support Assoc.

Mr. Bancoult opened the meeting expressing his pleasure at being able to have the meeting with Mr Hamilton. He is awaiting the result of the feasability study and wanted to know what proposals and decisions had been made.

He mentioned the proposed visit to Peros Banhos and Salomon Islands and requested a visit to Diego Garcia and the need to pay tribute to those buried there by relatives and take photos (not allowed) Burial area at East Point, D.G.

(Visit was only to be allowed to Peros Banhos and Salomon Islands in the north.)

He mentioned that many Philipinos, Mauritians, Singaporeans and Koreans work on D.G. by why not Chagosians ?

He had been advised of a meeting with Baroness Amos in July, but no fixed date yet.

There was no problem with non-Chagosian fishing boats being able to fish the island waters; they must have a permit for this; (Mauritians can fish in B.I.O.T. waters but no permit to land or visit the islands).

Mr Hamilton then replied to O.B. points; The feasibility study he has the draft and a meeting is scheduled for the following week to finalise it. Expect to make document public by end of June. (Once a copy is lodged with H. of C. it becomes a public document; Tam D., Mr. Gifford and J. Corbyn have all been advised).

Regarding the visit of M.S. Trochetia (?) to Chagos; they had asked the U.S. for permission to visit D.G. but this was flatly refused, the U.K. cannot overide the agreement; that decision is final, treaty obligations will NOT permit a visit.

Regarding Chagosians not being allowed to work on D.G.; the U.K. has insisted Mauritians and Chagosians be allowed to work there. He asked O.B. to produce evidence of any discrimination; there is a civil pop. on D.G. of 60-70 Mauritians.

He was unable to give exact date re meeting with Baroness Amos.

O.B. then mentioned 3 refugee groups: 7 degree S.E. : asked that groups be combined so as to obtain full details of ALL Chagosians in case U.K. Govt. asks/requires it.

M.S. Trochetia departs Port Louis on 5 October; has berths for 108 to visit Peros Banhos and Salomons. Organised by U.K. Govt. it will have C.H. on board as sole rep. and the rest would be all Chagosians.

Mauritian vessels can fish ‘free’ in B.I.O.T. waters. Foreign vessels must have a licence.

O.B. asked position re Brit. Citizenship of Chagosians : access to NHS and Education. (Brochure “What does B. Citizenship mean for the Overseas Territories”). Same support as locals if they live in U.K. 90 Chagosians now have Brit. Passport.

The meeting concluded at approx. 16.30.

O.B. expressed his satisfaction with the meeting and with C. Hamilton whom he had known before and who is married to a Mauritian

I met the Australian film cameraman outside very briefly and we chatted about his story for the film.

(sd) John Houghton.”

4.  I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Signature: Louis Olivier BancoultLouis Olivier Bancoult

 

Sworn by the abovenamed deponent]
At Supreme Court, Port-Louis]
This 11th day of July 2002]

 

Signature: Sivakumaren Mardemootoo Signature: Dhananjay Hurkoo

 

{Signature}

Louis Olivier Bancoult

 

Drawn up by meBefore me

{Signature}

{Signature}

Sivakumaren Mardemootoo
Attorney at Law
Supreme Court
Republic of Mauritius
Chief Court Officer
(D. Hurkoo)
{Dhananjay Hurkoo}

{Note: A faxed copy.}

 

Certificate of Service

I hereby certify that on this 1st day of August, 2002, I served by first-class mail, postage pre-paid, a true copy of the foregoing, Plaintiffs’ 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, and Memorandum in Support thereof, on counsel for Defendants listed below:


Cynthia Andreason
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave. N.W.
Suite 1200
Washington, DC 20009
Fax (202) 986-8102
Counsel for De Chazal Du Mee

Richard Montague
U.S. Department of Justice
Civil Division
1425 New York Avenue, N.W.
Suite 8122
Washington, D.C. 20005
Fax (202) 616-4314
Counsel for the United States
{sic: Individual Federal Defendants}

Harry Reasoner
Scott Atlas
Vinson & Elkins
2300 First City Tower
1001 Fannin
Houston, TX 77002-6760
Counsel for Halliburton Corp.


Elaine Marzetta Lacy
U.S. Department of Justice
Torts Branch, Civil Division
P.O. Box 888
Washington, D.C. 20044
Fax (202) 616-5200
Counsel for the United States

 

Signed this 1st day of August, 2002.

Signature: Francisco Rivera

 

{Signature}

Francisco Rivera

Footnotes

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

 1  Defendant United States accepts Plaintiffs have suffered an injury in fact, the first element of a standing inquiry, but contests their responsibility for Plaintiffs’ injuries. See Def. United States’ Opp. to Pls.’ Mot. for Prel. Inj. (“Opposition”) at 10 (arguing by omission that Plaintiffs satisfy the first element of a standing inquiry).

 2  The outer islands include all the islands of the Chagos Archipelago except for Diego Garcia.

 3  Plaintiffs contest the U.S. Government’s entry of appearance for the Individual Defendants. See Pls.’ Consolidated Opp. to Individual Fed. Defs.’ Mot. to Dismiss and Crossmotion to Strike Certification of Scope of Employment, filed April 22, 2002 {withheld by the court clerk from public inspection}.

 4  Defendant United States, in its Opposition to Plaintiffs’ Motion for Preliminary Injunction, addressed the injunctive relief requested in Plaintiffs’ Complaint. Defendant United States stated that “[t]here would be detrimental impacts upon our operations if another population not associated with our common mission, and not subject to our screens and safety provisions, were to sit at our very doorstep.” Opposition at 5 (quoting Lucarelli Decl. ¶ 12).

 

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

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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 Dec. 8 2002. Updated May 30 2008.

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