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Full-text: November 18 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Nov 18 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.)
 )

Court-Ordered Supplemental Brief in Support of Defendant United States’ Motion to Dismiss

Introduction

The Court’s Memorandum Opinion {50 kb} directed plaintiffs to identify the legal basis for each of their claims, specify the relief sought with respect to each claim, and the waiver of sovereign immunity with respect to each claim and the relief sought. Sept. 30, 2002, Mem. Op. at 6. ¶

Plaintiffs have responded by identifying five claims, which they label as: “forced relocation”, “genocide”, “torture”, “racial discrimination”, and “cruel, inhuman and degrading treatment,” Supplemental Memorandum in Response to this Court’s Order of September 30, 2002, (“Pl. Supp. Br.”) at 1. The legal basis for each claim, they allege, is “customary international law,” and jurisdiction is based upon the Alien Tort Claims Act. 28 U.S.C. § 1350. Id. Plaintiffs have not demonstrated a waiver of sovereign immunity; accordingly, this suit should be dismissed.

Discussion

Plaintiffs have failed to identify an express waiver of sovereign immunity. Instead, they again urge the Court to find an implied waiver, arguing that sovereign immunity is simply incompatible with the concept of jus cogens. Pl. Supp. Br. at 11. But the Court has properly {p.2} observed that sovereign immunity cannot be waived by implication. Mem. Op. at 5, n.3. See also, FDIC v. Meyer, 510 U.S. 471, 475 (1994). Accordingly, plaintiffs’ suit must be dismissed for lack of jurisdiction, because there has been no waiver of the United States’ sovereign immunity. 1 

Plaintiffs identify five “claims” for violations of customary international law, which they purport to bring pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350: “Forced relocation”, “genocide”, “torture”, “racial discrimination” and “cruel, inhuman, and degrading treatment”. Pl. Supp. Br. at 1. ¶

It is well-established that the Alien Tort Claims Act does not waive the United States’ sovereign immunity. See e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985); Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir.) (per curiam), cert. denied, 506 U.S. 908 (1992). Plaintiffs argue that the Administrative Procedures Act (“APA”) provides a waiver of sovereign immunity in this action. Pl. Supp. Br. at 7. They are wrong for a number of reasons.

First and foremost, the APA provides review only for agency conduct that is wrongful {p.3} “within the meaning of a relevant statute ....” APA, 5 U.S.C. § 702. 2  ¶

Plaintiffs cite to no federal statute which sets forth a standard of conduct that plaintiffs allege an agency of the United States has violated. Instead, while acknowledging that APA review requires an alleged-violation of controlling law, plaintiffs argue that the standard for APA review here is supplied by “customary international law”. Pl. Supp. Br. at 7. ¶

Citing to language in Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988) (“[T]he APA does not grant judicial review of agencies’ compliance with a legal norm that is not otherwise an operative part of domestic law.”), plaintiffs imply that violation of any “domestic law” is subject to APA review. They then assert that “customary international law is an operative part of domestic law ... [i]ndeed, customary international law is the federal substantive law governing {p.4} this dispute.” Pl. Supp. Br. at 7. ¶

By taking the Committee of U. S. Citizens quotation out of context, plaintiffs fail to acknowledge that the court in Committee of U. S. Citizens distinguished between domestic law and customary international law and held that APA cannot be used to enjoin the United States from conduct which allegedly violates international law. In Committee of U.S. Citizens, the court addressed whether there can be judicial review of the United States’ actions as measured against standards of international law, and decisively answered “no.”

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

Committee of U.S. Citizens, 859 F.2d at 935. 3  ¶

Plaintiffs try to avoid the result dictated by the holding in Committee of U.S. Citizens by arguing that the alleged violations of which they complain violate jus cogens norms of international law. 4  ¶

However, subsequent to Committee of {p.5} U.S. Citizens, the D.C. Circuit held in Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995), that there can be no implied waiver of sovereign immunity for an alleged violation of jus cogens. Responding to the dissent, the majority, noted that ¶

“[w]hile it is true that ‘international law is a part of our law,’ Paquete Habana, 175 U.S. at 700, it is also our law that a federal court is not competent to hear a claim arising under international law absent a statute granting such jurisdiction.” ¶

Id. at 1174, n.1. ¶

Accordingly, the Princz court held that Germany retained sovereign immunity for blatant violations of jus cogens norms by the Third Reich (enslaving the plaintiff, an American Jew, imprisoning him in concentration camps, and murdering his family). See also, Hwang Geum Joo v. Japan {142kb.pdf}, 172 F.Supp.2d 52, 60-61 (D.D.C. 2001) (in suit by former comfort women against Japan for abduction and forced sexual slavery held that “in light of the binding precedent of the D.C. Circuit in Princz, the court concludes that Japan’s jus cogens violations do not constitute an implied waiver under § 1605(a)(1).”). 5  {p.6}

Plaintiffs cannot rely on the APA for the additional reason that the money damages they seek are not available pursuant to the APA. See 5 U.S.C. § 702 (APA provides relief “other than money damages....”) Plaintiffs seek money damages for each claim they allege. Pl. Supp. Br. at 5-6. ¶

With respect to their claim for “forced relocation”, plaintiffs attempt to couch their claim for money damages as an injunctive remedy for “injunctive disgorgement” and “restitution for unjust enrichment”. Id. at 5. This remedy, they argue, is not “money damages” but rather an injunctive remedy which returns to them “the very thing to which they are entitled,” to paraphrase Department of the Army v. Blue Fox, 525 U.S. 255 (1999). Pl. Supp. Br. at 8. ¶

Plaintiffs misconstrue Blue Fox. In Blue Fox a subcontractor sought an equitable lien pursuant to the APA against the Army because the Army contracting officer had failed to require the prime contractor to comply with the Miller Act by posting a payment bond to protect the subcontractor. The subcontractor sought payment from the Army, arguing that it was an equitable remedy rather than money damages. The Supreme Court disagreed, and held for the United States, reasoning that money from the Treasury is “specific relief as opposed to “money damages” only if it is “the very thing to which [the plaintiff] is entitled.” In Bowen v. Massachusetts, 487 U.S. 879 (1988), the Court ordered the United States to make certain payments for Medicaid services to the State that were required by the Medicaid Act. Those payments in Bowen, the Court in Blue Fox explained, were not barred by the APA’s prohibition against money damages because the medicare payments were the very thing to which plaintiffs were entitled under the statute. Blue Fox at 262-3, citing Bowen at 895. In contrast, an equitable lien “merely grants a plaintiff ‘a security interest in the property, which [the plaintiff] can then use to satisfy a money claim,’ usually a claim for unjust enrichment.” Blue Fox at 263. ¶

Here, plaintiffs seek money damages {p.7} from the United States for the so called tort of “forced relocation”. A monetary award to compensate a plaintiff in tort is a quintessential example of “money damages.” There is no federal statute requiring payment to plaintiffs for “forced relocation.” 6  Hence, any monetary award here would be “substitute relief (Blue Fox, at 263) and, therefore, money damages which are not allowed pursuant to the APA.

Another reason why plaintiffs cannot maintain this action pursuant to the APA is that it is barred by the APA six-year statute of limitations. 28 U.S.C. § 2401(a). The United States notes in its opening brief supporting its motion to dismiss that all of plaintiffs’ factual assertions upon which they base their claim, including allegations of deception on the part of persons in both the British and the United States governments, were made public at the time of the 1975 Congressional Hearings. See Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants {575 kb}, Hearings Before the Special Subcommittee on Investigations of the Committee on International Relations, House of Representatives, 94th Congress, First Session, June 5 and November 4, 1975, pp. i-vi; 1-123, Exh. D to U.S. Mot. to Dismiss. ¶

Plaintiffs’ only response is that a statute of limitations argument is “premature,” arguing that “analysis of the {p.8} statute of limitations issues requires consideration of complex and contested questions of fact.” Pl. Opp. at 7. ¶

Plaintiffs rely only on Adair v. England {45kb.pdf}, 183 F.Supp.2d 31, (D.D.C. 2002), a case in which the court declined to dismiss on statute of limitations grounds where the plaintiffs alleged fraudulent concealment as tolling the statute of limitations. But in the instant case, the plaintiffs do not identify any facts fraudulently concealed by the United States that have come to light only within the six years prior to initiation of this suit. The Congressional Hearings of 1975 make plain that the essential facts regarding the removal of the Chagossians from the islands, including allegations of secret agreements and misrepresentations regarding the status of the islanders, were known in 1975. Hence, any APA action is time-barred.

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

The APA specifically provides that its judicial review provision does not affect “the power or duty of the court to dismiss any action or deny relief on any... appropriate legal or equitable ground.” 5 U.S.C. § 702. At least where the authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more specifically addressed to such concerns than the Alien Tort {p.9} Statute and the APA, we think it would be an abuse of our discretion to provide discretionary relief. The support for military operations that we are asked to terminate has, if the allegations in the complaint are accepted as true, received the attention and approval of the President, the Secretary of State, the Secretary of Defense, and the Director of the CIA, and involves the conduct of our diplomatic relations with at least four foreign states.... Whether or not this is, as the District Court thought, a matter so entirely committed to the care of the political branches as to preclude our considering the issue at all, we think it at least requires the withholding of discretionary relief.

Id. at 208, notes, citations omitted. See Bruno v. Albright {48kb.html}, 197 F.3d 1153, 1161-62 (D.C. Cir. 1999) (When suit is brought to challenge decisions pertaining to foreign affairs the presumption regarding judicial review of agency action “is the opposite of what the APA normally supposes ... When it comes to matters touching on national security or foreign affairs ... the presumption of review ‘runs aground’.”), citing Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). ¶

Just as the United States’ support of the Contras received attention of Congress and the executive branch at high levels, so has the United States’ decision to negotiate with Britain to place a military base on the uninhabited island of Diego Garcia. Congress and the executive considered the impact on the Chagossians, and, by funding and going forward with the base, indicated their conclusion that the United States’ national security interests outweigh any harm suffered by the Chagossians. ¶

Whether or not plaintiffs allege that the actions by Britain toward the Chagossians at the United States’ behest contravened international law, it would be an abuse of discretion under the APA for the Court to enjoin the political branches in this matter. See Sanchez-Espinoza, 770 F.2d at 208.

In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that any restrictions on actions of the United States toward aliens abroad cannot come from application of laws of the United States, including the Constitution, but rather “must be imposed {p.10} by the political branches through diplomatic understanding, treaty, or legislation.” Id. at 275. In the context of tort litigation, this Court has held that the Constitution does not apply to acts of the United States vis a vis foreigners in foreign countries. See Hoffman v. United States {62kb.pdf}, 53 F.Supp.2d 483, 490-91 (D.D.C. 1999), aff’d in part, vacated in part, 17 Fed. Appx. 980 (2001); cert denied, 122 S.Ct. 2327 (2002). In Hoffman, the Court flatly rejected the application of Constitutional protections to aliens abroad:

The more general proposition that non-resident friendly aliens with no voluntary or contractual relationship with the United States are entitled to Fifth Amendment rights, however, was emphatically rejected by the Supreme Court in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950):

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our constitution has even hinted at it. The practice of every modern government is opposed to it.

Id. at 784, 70 S.Ct. 936; see also United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”).

Id. at 490-91 {62kb.pdf}. ¶

Plaintiffs argue that customary international law is part of domestic law, and the Court should, therefore, follow norms of customary international law just as it would domestic law. The fact that Constitutional protections are not enforceable in United States courts by aliens (with respect to the United States’ conduct toward them abroad), however, suggests that United States courts likewise will not provide a judicial remedy for alleged non-Constitutional, “domestic law” violations by the United States toward aliens abroad. See, Sanchez-Espinoza v. Reagan, 770 F.2d at 208. {p.11}

Finally, plaintiffs have identified no specific “injunctive relief” which they seek pursuant to APA review, and certainly no injunctive relief to which they are entitled pursuant to any federal statute. In response to the Court’s Order that they specify the relief they seek for each claim, Mem. Op. at 6, the plaintiffs respond that they seek “injunctive relief directing, among other things: an immediate return to the entire Chagos Archipelago and limited commercial access to the airstrip on Diego Garcia”. See Pl. Supp. Br. at 5-6. ¶

But this verbalizes only a vague end result — return to Diego Garcia — that plaintiffs seek: They are silent as to what specific injunctive relief they would have the Court order a particular agency and federal officer of the United States to provide. 7  “Any mandatory or injunctive decree [issued pursuant to the APA] shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.” 5 U.S.C. § 702. ¶

Indeed, plaintiffs have completely failed to articulate any specific injunctive remedy which is in this Court’s power to order. It is well-settled that the Court has no authority to order the executive to take a particular position in negotiations with foreign countries. See Miller v. Albright {DoJ summary}, 1998 WL 846653 (D.C. Cir. 1998) (“To the extent the district court’s order required the Secretary of State to adopt a certain position in negotiations with the Federal Republic of Germany, the order represents an unwarranted usurpation of the executive’s conduct of foreign relations.”) citing Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978) (an order directing action by the Secretary of State in {p.12} foreign affairs “deeply intrudes into the core concerns of the executive branch” and would require an “extraordinarily strong showing to succeed” if in fact it is justiciable.) Accordingly, the injunctive relief plaintiffs seek is not within the Court’s authority to issue.

In sum, plaintiffs have identified no waiver of sovereign immunity for the money damages they seek. Their demands for injunctive relief are non-specific and vague and seek relief that is not in the power of this Court to provide. For the reasons explained in this memoranda and in the United States’ earlier submissions, the APA does not provide a waiver of sovereign immunity for plaintiffs’ non-monetary claim which they purport to base upon customary international law. In any event it would be an abuse of the Courts’ discretion to order injunctive relief pursuant to the APA in this instance. {p.13}

Conclusion

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

Respectfully submitted,

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

Roscoe C. Howard, Jr.
United States Attorney

Jeffrey Axelrad
Director, Torts Branch, Civil Division

 

Signatures: Paul F. Figley, Elaine Marzetta Lacy

 

{Signature}

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


{Signature}

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

Attorneys for United States of America

{p.14}

______________________

Certificate of Service

I hereby certify that on November 18, 2002, I mailed by first class mail, a true copy of the foregoing United States Supplemental Brief in Support of Motion to Dismiss to the following counsel of record (and sent by telecopier to Michael Tigar):

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

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

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

Signature: Elaine Marzetta Lacy

 

{Signature}

Elaine Marzetta Lacy

Footnotes

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

 1  Beyond the absence of a waiver of sovereign immunity, plaintiffs’ suit must be dismissed for a number of other reasons (e.g., political question doctrine, standing) which are addressed at length in the United States’ memoranda filed in support of its Motion to Dismiss. Moreover, plaintiffs’ assertion of the instant claims pursuant to international law invites the observation that the Complaint fails to allege facts that satisfy the elements of these claims under customary international law. Since, this is a supplemental brief, however, directed only to the plaintiffs’ response to the Court’s narrowly-focused instructions in its Memorandum Opinion, the United States does not discuss the additional bases for dismissal in this memorandum. Rather, the Court is respectfully referred to the United States’ Motion to Dismiss {160 kb} and the memoranda filled in support of that motion.

 2  5 U.S.C. § 702 provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. ¶

[Emphasis added.]

 3  Similarly, in the present action, the executive branch negotiated with Britain for use of Diego Garcia as the United States’ military base, including Britain’s removal of the Chagossians. After hearing detailed protests regarding the removal of the Chagossians during the November 1975 Congressional hearings, Congress nevertheless appropriated funds for an extensive build up of United States’ operations on Diego Garcia. See Hearings, 94th Cong., June 5 and Nov. 4, 1975, Exh. D {575 kb} to U.S. Mot. to Dismiss {160 kb}.

 4  The court in Committee of U.S. Citizens candidly noted that “[s]o far as we know, no federal court has ever considered the concept — much less the domestic effect — of jus cogens.” Id., 859 F.2d at 940.

 5  Plaintiffs’ argument that domestic law incorporates customary international law is inconsistent with the court’s recognition in Committee v. {sic: of} U.S. Citizens that the United States has adopted a “dualist” rather than “monist” view of the relationship between domestic and international law. See Committee v. {sic: of} U.S. Citizens, 859 F.2d at 937:

As the Supreme Court said in the Head Money Cases {50 kb}, a treaty “depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations ... [but] with all this the judicial courts have nothing to do and can give no redress.” 112 U.S. at 595 {sic: 598}, 5 S.Ct. at 253. This conclusion reflects the United States’ adoption of a partly “dualist” — rather than strictly “monist” — view of international and domestic law. “[D]ualists view international law as a discrete legal system [which] ... operates wholly on an inter-nation plane.”

Id. (citations omitted; information in [ ] in original).

 6  “Forced relocation” is not even a tort under customary international law, let alone jus cogens. See, Beneal {sic: Beanal} v. Freeport-McMoran, Inc. 969 F.Supp. 362, 373 (E.D. La. 1997), aff’d. {29kb.html/txt}, 197 F.3d 161 (5th Cir. 1998) (Allegations that mining company committed genocide by conduct “result[ing] in displacement, relocation and ‘purposeful, deliberate, contrived and planned demise of a culture of indigenous people’” did not state a claim for genocide pursuant to international law.). ¶

With respect to their claims of genocide, torture, racial discrimination and cruel, inhuman and degrading treatment, plaintiffs do not identify any specific acts by employees of the United States (as distinguished from employees of the United Kingdom) which they contend support these claims. See generally, Committee of U.S. Citizens, 859 F.2d at 950. ¶

In fact, the United States’ acts with respect to the Chagossians — recognition of British sovereignty over the Chagos Islands and engaging in diplomatic negotiations to secure use of Diego Garcia for a base — do not in any sense violate international law.

 7  Would plaintiffs have the Court order the Ambassador to Great Britain to negotiate with Britain to permit the Chagossians to enter the Islands? Would the plaintiffs have the Court order the United States to charter vessels to transport Chagossians to the Islands? Do plaintiffs wish the Court to order the United States to close down portions of the base and build dwellings for the Chagossians on Diego Garcia similar to any that existed when the Chagossians worked the copra plantations?

 

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. 2 2002. Updated May 30 2008.

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