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Full-text: December 2 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Dec 2 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’ Reply to Defendant United States’ Court-Ordered Supplemental Brief

In its recent motion before the Court, Defendant United States (“Defendant”) contends that Plaintiffs have failed to demonstrate a waiver of sovereign immunity. See Court-Ordered Supplemental Brief in Support of Defendant United States’ Motion to Dismiss (“Def.’s Supp. Br.”) at 1. ¶

Plaintiffs disagree for the following reasons. ¶

First, the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, provides subject matter jurisdiction for Plaintiffs’ customary international law claims and also defines the wrongful conduct required in order to waive sovereign immunity under the Administrative Procedure Act (“APA”). ¶

Second, Plaintiffs request for an injunctive disgorgement order does not violate the APA’s ban on money damages. ¶

Third, any applicable statutes of limitations have either not begun to run under the continuous tort doctrine or they have been tolled due to the United States’ fraudulent concealment of facts necessary to understand Defendant’s complicity in actions leading to Plaintiffs’ harms. ¶

Fourth, limitations on the constitutional protections afforded to aliens do not limit Plaintiffs’ ability to bring an action against Defendant because Plaintiffs do not allege constitutional violations. {p.2} ¶

Finally, Plaintiffs’ requested injunctive remedy is specific, within the Court’s power, and does not threaten or infringe upon the political branches of government.

I.
Suits Brought Under the Alien Tort Claims Act Qualify for the Administrative Procedure Act’s Waiver of Sovereign Immunity

Defendant argues that the APA is unavailable to Plaintiffs as a waiver of sovereign immunity absent a federal statute defining the wrongful agency conduct complained of. See Def.’s Supp. Br. at 2-3. ¶

The Alien Tort Claims Act is a federal statute that defines the standard of conduct — torts “committed in violation of the law of nations” — sufficient for APA review. 1  The District Court for the Southern District of Florida recently held that a group of Hungarian Jews and their descendants could “proceed, pursuant to the APA, with their claim for international law violations” against the United States for illegally seizing Nazi war loot. Rosner v. United States {1435kb.pdf}, 2002 WL 31398799, at *10 (S.D. Fla. Aug. 28, 2002). The court in Rosner stated that “to the extent that Plaintiffs seek the non-monetary relief of an accounting and return of their property pursuant to the APA, the Court finds a waiver of sovereign immunity with respect to [plaintiffs’ customary international law claims].” Id. at *8. This holding is consistent with Plaintiffs’ earlier argument that customary international law is an operative part of domestic law for the purpose of bringing action pursuant to the APA. Moreover, Rosner is also consistent with the limited discussion on the issue within this circuit. In Rasul v. Bush {70kb.pdf}, the District Court for the District of Columbia stated that “‘the Administrative Procedure Act ... is arguably available’” as a waiver of sovereign immunity for actions brought under the ATCA. 215 F. {p.3} Supp. 2d 55, 64 n.11 (D.D.C. 2002) {reversed June 28 2004 (U.S., No. 03-343) (521kb.pdf)} (citing Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985)). 2 

Defendant next argues that the “APA cannot be used to enjoin the United States from conduct which allegedly violates international law.” See Def.’s Supp. Br. at 4. ¶

This is simply not true in light of the above-cited cases in which courts have found the APA applicable in just such situations. See Rosner, 2002 WL 31398799 at *10 (finding APA waiver of sovereign immunity applicable to international law claims brought under the ATCA); Rasul {70kb.pdf}, 215 F.Supp.2d at 64 n.11 {reversed June 28 2004 (U.S., No. 03-343) (521kb.pdf)} (citing Sanchez-Espinoza, 770 F.2d at 207 (recognizing that the APA is arguably available in certain situations as providing a waiver of sovereign immunity for international law violations)).

Unaware or disregarding this authority, Defendant attempts to construe the court’s holding in Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988), as a blanket prohibition on claims brought under the APA for violations of international law. ¶

In fact, the Court in Committee of U.S. Citizens much more narrowly held that the APA could not be relied upon for judicial review of a Congressional decision to “disregard the ICJ decision and to continue funding the Contras.” Id. To support its theory, Defendant attempts to draw an analogy between the instant case and Committee of U.S. Citizens. See Def.’s Supp. Br. 4. However, legal harms allegedly caused by the U.S. contravention of an ICJ decision are completely dissimilar from Plaintiffs’ injuries directly caused by Defendant’s tortious conduct in violation of customary international law. {p.4}

Moreover, the language relied upon by Defendant for its theory that the APA is never available in disputes regarding violations of international law does not even originate from the Court’s APA analysis. Rather, Defendant seizes upon language that comes from an analysis of the Court’s lack of authority to provide a remedy “when our government’s two political branches, acting together, contravene an international legal norm” born of an ICJ decision. Committee of U.S. Citizens, 859 F.2d at 935. Despite Defendant’s contention to the contrary, the two political branches were not “acting together” when decisions were made to forcibly relocate the Chagossians. See Def.’s Supp. Br. at 4, n.3. ¶

In fact, the record indicates that the executive branch fraudulently concealed information regarding the removal of Plaintiffs from Chagos in order to ensure swift congressional approval of funds for an extensive buildup of the base several years after the removal process had been completed. 3 

II.
Plaintiffs’ Request for an Injunctive Disgorgement Order Is Not Prohibited by the Administrative Procedure Act’s Bar on Money Damages

Defendant argues that Plaintiffs may not invoke § 702 of the APA because Plaintiffs seek money damages for each claim they allege. See Def.’s Supp. Br. at 6. ¶

This is incorrect. With respect to the claim for cruel, inhuman, and degrading treatment, Plaintiffs requested no monetary relief whatsoever. See Supplemental Memorandum in Response to this Court’s Order of September 30, 2002 (“Pls.’ Supp. Br.”) at 6. With respect to genocide, torture, and racial discrimination, Plaintiffs seek the monetary relief available to them if and when the Court concludes that Plaintiffs’ claims for violations of jus cogens norms of international law are not barred by Defendant’s sovereign immunity. Id. at 5-6. With respect to forced relocation, Plaintiffs seek an injunctive disgorgement order requiring restitution for unjust enrichment—a {p.5} remedy available by virtue of Defendant’s violation of jus cogens norms, and through the APA independently. Pls.’ Supp. Br. at 9. In short, “[t]hat the United States may have to return a sum of money to [P]laintiff[s] does not transform this action into one for money damages” prohibited by the APA. Montgomery v. Scott, 802 F.Supp. 930, 934 (W.D.N.Y. 1992).

Defendant also argues that Plaintiffs may not seek a monetary award under the APA in the absence of a federal statute requiring payment to Plaintiffs for forced relocation. See Def.’s Supp. Br. at 7. ¶

Defendant’s argument ostensibly springs from the factual context of Bowen v. Massachusetts, 487 U.S. 879 (1988), in which the Supreme Court found that a suit brought by the state of Massachusetts against the United States for monies wrongfully withheld under the Medicaid statute was not barred by the APA’s exclusion of money damages because the suit did not seek damages owed by reason of the wrongful denial of funds, but rather sought to compel the performance of the duty owed. Id. at 895. Defendant’s argument fails because Bowen was neither limited to its facts, nor predicated on the need for a federal statute. As explained by the Court of Appeals for the Second Circuit, Bowen

rests not on the fact that the federal government’s duty was statutory, but rather on the distinction between money damages, which seek to compensate for governmental failure to perform a legal duty, and injunctive relief requiring that the duty be performed. We can see no reason why the Bowen holding should be limited to duties prescribed by statute, as opposed to those arising under some other rule of law, any more than it should be limited to claims brought by Massachusetts.

Aetna Cas. & Sur. Co. v. United States, 71 F.3d 475. 479 (2d Cir. 1995) (internal citation omitted). ¶

Here the Government’s duties are prescribed by one such “other rule of law”—the doctrine of restitution 4 —and these duties remain enforceable through an injunctive disgorgement {p.6} order. Moreover, as a consequence of having misconstrued the operative principle in Bowen by erroneously trumpeting the need for a federal statute, Defendant has failed to articulate any argument to rebut the non-substitutionary nature of Plaintiffs’ prayer for an injunctive disgorgement order. See Def.’s Supp. Br. at 7. Because Plaintiffs seek an injunctive disgorgement order to force the Government to perform a legal obligation, the action is not forbidden by the APA’s bar on money damages.

III.
Plaintiffs’ Action Is Not Barred by Any Statute of Limitations, Nor Does the Relief Plaintiffs Seek Contravene Any Informed Congressional Decision

Defendant contends that Plaintiffs’ only response to Defendant’s statute of limitations claims is that such an argument is “premature” and that resolution of the statute of limitations issues would require consideration of complex and contested questions of fact. See Def.’s Supp. Br. at 7-8. ¶

Defendant blatantly ignores Plaintiffs’ previous in-depth discussion of relevant statute of limitations issues. In the very opposition Defendant cites, Plaintiffs’ Opposition to Defendant United States’ Motion to Dismiss (“Pls.’ Opp. to Def. U.S.”), Plaintiffs incorporated all applicable statute of limitations arguments made in their opposition to the Individual Federal Defendants’ Motion to Dismiss (“Pls.’ Opp. to Ind. Fed. Defs.”) {withheld by the court clerk from public inspection}. See Pls.’ Opp. to Def. U.S. at 7. In that opposition, Plaintiffs detailed support for their assertion that Defendants’ motion to dismiss on statute of limitations grounds should not be granted because Plaintiffs’ Complaint is not on its face time barred. See Pls.’ Opp. to Ind. Fed. Defs. at 29 {withheld by the court clerk from public inspection}.

Plaintiffs have argued that their claims constitute crimes against humanity, for which there are no applicable statute of limitations. See id. at 29-31 {withheld by the court clerk from public inspection}. Alternatively, Plaintiffs argued {p.7} that if the Court does find that a statute of limitations, such as the comparable ten-year statute of limitations of the Torture Victim Protection Act, does apply to Plaintiffs’ claims, then the statute of limitations has not begun to run because Plaintiffs are still unable to return to their homeland and continue to be subject to the effects of Defendants’ continuously tortious conduct. See Pls.’ Opp. to Ind. Fed. Defs. at 37 {withheld by the court clerk from public inspection} (citing Rochon v. F.B.I., 691 F.Supp. 1548, 1563 (D.D.C. 1988) for the proposition that under the continuing-tort doctrine, the statute of limitations does not begin to run until the tortious conduct ceases, as opposed to when a plaintiff knew or should have known about the tortious activities). Plaintiffs further argued that any such statute of limitations also would be tolled as a result of Defendants’ fraudulent concealment of information necessary to Plaintiffs’ Complaint and Defendants’ outrageous disregard for Plaintiffs’ well-being. See id. at 31-35 {withheld by the court clerk from public inspection}.

Regarding this last argument, Defendant now claims that Plaintiffs have not identified any facts fraudulently concealed by the United States that have come to light only within the last few years. See Def.’s Supp. Br. at 8. ¶

Again, Defendant plainly ignores the record in this case, which clearly contradicts its assertions. The full extent of Defendant’s involvement and resulting liability for the removal of the Chagossians from their homeland was revealed for the first time just two years ago during litigation in the United Kingdom. See Pls.’ Opp. to Ind. Fed. Defs. at 5 {withheld by the court clerk from public inspection} (noting that as a result of The Queen v. Sec’y of State for the Foreign & Commonwealth Office: ex parte Bancoult, 2 W.L.R. 1219 (2000), 2000 WL 1629583 (QBD (Admin. Ct.)), Plaintiffs gained access to documents providing details of the events surrounding their removal, which provided them for the first time with sufficient information to implicate Defendants). ¶

Many of these and other recently released documents shed light on the United States’ specific efforts to keep Congress in the dark. See, e.g., Letter from Ian Watt (“Watt Letter”), Atlantic and Indian {p.8} Ocean Dept., to Mr. D.A. Scott et al. ¶ 6 (Jan. 26, 1971), Attach. 1 to Pls.’ Opp. to Ind. Fed. Defs. (noting that no overt action regarding settlement “should be taken which might prejudice the outcome of Congressional hearings.”); Id. at ¶ 12 (reporting that the U.S. Government secretly contributed the equivalent of £5 million” to the establishment of BIOT); see also Letter from Gerald G. Oplinger (“Oplinger Letter”), Politico-Military Affairs, British Embassy, to Richard A. Sykes, U.K. Defence Department 2 (Feb. 5, 1969), Attach. 3 to Pls.’ Opp. to Ind. Fed. Defs., supra, at 5 {at ¶ 6} (recognizing the “danger of premature leakage [of the true U.S./U.K. plan] before the Committee hearings are held.”).

Previously submitted evidence also contradicts Defendant’s claims that decisions to remove the Chagossians were the result of full consideration of the political branches of government and therefore would be an abuse of the court’s discretion to grant Plaintiffs’ request for injunctive relief. See Def.’s Supp. Br. at 8-9. Defendant is simply incorrect in its claim that the decision to place a military base on the “uninhabited island of Diego Garcia” — and any resulting impact on the Chagossians — was fully considered by Congress and the Executive. See id. at 9.

Specifically, the 1975 Congressional hearings {575 kb} (“1975 Hearings”) 5  were not the global announcement of U.S. involvement in  the removal and forcible relocation of  Plaintiffs that Defendant claims them to be. See id. at 7 (claiming that all of Plaintiffs’ claims, including deception on the part of the United States, were made public at the 1975 Hearings). ¶

Rather, the record in this case indicates that Congress was unable to make an informed decision regarding the Chagossians because the United States fraudulently concealed the extent of its involvement {p.9} in Plaintiffs’ removal in its effort to get swift congressional approval for funding for the already existing base. Compare 1975 Hearings at 44 {575 kb} (stating that the U.S. was not involved in the arrangement for resettling the population of the Chagos Archipelago), with Watt Letter ¶¶ 5, 11 (confirming that the U.S. security arrangements at Diego Garcia would require removal of the entire population, and that the U.S. had a deadline for clearing the island), and Oplinger Letter {at ¶ 1} (stating Washington’s desire for the “ultimate removal of all migrant laborers from Diego Garcia”).

Furthermore, there is evidence in the 1975 Hearings that members of Congress had specific concerns about the United States’ role in the removal of the Chagossians. See, e.g., 1975 Hearings at 66-69 {575 kb} (Congressman Hamilton asking Defendant George T. Churchill, Director, Office of International Security Operations, U.S. Department of State, whether the United States had a legal or moral responsibility toward the Chagossians, whether they were forcibly removed, and suggesting that the fact that the Chagossians had a church and graveyard showed they had a sense of community). These concerns were answered with false and/or inaccurate information. See, e.g., id. at 66-69 (Churchill responding to questions by asserting that the U.S. had no legal or moral responsibility to the Chagossians, stating that no force was used to remove them, and that they were merely contract workers, not natives); see also Vytautas Blaise Bandjunis, Diego Garcia: Creation of the Indian Ocean Base 127 (2001), Attach. 14 to Pls.’ Mot. for Disc. in Resp. to Def. Halliburton’s Mot. to Dismiss (reporting that the true revelation of the “plight of the former inhabitants was like a bomb shell exploding in Congress” and opponents of the base, like Senators John Culver and Edward Kennedy, “believed that they had been purposely misled by administration witnesses,” like Churchill). {p.10}

Therefore, Defendant’s contention that Plaintiffs have not adequately addressed the statute of limitations claims, and bald assertion that Plaintiffs have not identified any recently discovered evidence of the United States’ fraudulent concealment of Plaintiffs’ plight, are directly contradicted by the record in this proceeding. Accordingly, Plaintiffs urge this Court to follow “the D.C. Circuit’s well-settled precedent” denying dismissals on limitations grounds as premature when discoverable questions of fact are at issue. (Adair v. England {45kb.pdf}, 183 F.Supp.2d 31, 54-55 (D.D.C. 2002) (relying on Firestone v. Firestone {46 kb}, 76 F.3d 1205, 1209 (D.C. Cir. 1996), for the proposition that “because statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred”). ¶

Plaintiffs respectfully urge the Court to schedule an evidentiary hearing and allow for discovery for the purposes of bringing to light and further clarifying any support not yet in the record regarding Defendant’s efforts to fraudulently conceal its wrongs committed against Plaintiffs in violation of international law.

IV.
Plaintiffs Have Not Alleged Constitutional Violations and Maintain Their Cause of Action Under the ATCA and APA

Defendant incorrectly argues that because its actions toward Plaintiffs are not restricted by the Fourth and Fifth Amendments to the Constitution, Defendant is therefore also not restricted by customary international law. See Def’s Supp. Br. at 9-10. ¶

Defendant mischaracterizes United States v. Verdugo-Urquidez, 494 U.S. 259, 275 (1990), which held only that the Fourth Amendment does not apply to searches and seizures conducted against aliens and their property abroad. Instead, Defendant would like the Court to believe that Verdugo-Urquidez holds that “any restrictions on action of the United States toward aliens abroad cannot come from application of laws of the United States.” Id. at 9. ¶

Verdugo-Urquidez does not stand for such a far-reaching proposition. Indeed, Verdugo-Urquidez concerned the limited issue of {p.11} extraterritorial application of the Fourth Amendment. Plaintiffs have not claimed any constitutional violations, and thus, fail to see how Verdugo-Urquidez has any bearing on whether Defendant is immune from liability for harms caused to Plaintiffs by uprooting them from their homeland. 6 

Defendant’s assertions that judicial remedies are unavailable for aliens who are harmed by the United States abroad also lacks supporting legal authority. In Sanchez-Espinoza, relied upon by Defendant for this proposition, the Court ultimately denied Plaintiffs’ request to enjoin the Reagan administration from continuing to support the Nicaraguan Contras, but it did so based on the particular facts of that case rather than as a general rule. 770 F.2d at 207. While Judge Scalia wrote that “the waiver of the Administrative Procedure Act (“APA”) is arguably available” in cases brought under the ATCA, id. at 207, Defendant would have this Court believe that Sanchez-Espinoza held that it would be an across the board abuse of discretion for the court to ever “provide injunctive relief against the political branches of government pursuant to the APA for alleged violations of international law.” Def.’s Supp. Br. at 8. The Court instead held that, based on the specific facts of the case, for an area “so entirely committed to the care of the political branches,” injunctive relief would be an abuse of the court’s discretion. Sanchez-Espinoza, 770 F.2d at 208. ¶

Although the instant case similarly involves United States activity abroad, the similarities between the two cases end there. Plaintiffs in this case are not asking the Court to curtail operation of, much less “terminate,” the military facilities on Diego Garcia. In fact, by seeking the court’s assistance to end the discriminatory hiring practices on Diego Garcia, Plaintiffs have indicated their willingness to exist in harmony with the base. {p.12}

V.
Plaintiffs Prayer for Injunctive Relief Is Sufficiently Specific and Within the Court’s Authority To Order

In accordance with the Court’s Order, Plaintiffs have clearly identified the specific injunctive relief sought for each claim. 7  Plaintiffs are required only to specify what agency action they seek the court to enjoin, and not the diplomatic and logistical means by which that action is performed. The level of specificity provided in Plaintiffs’ Supplemental Brief is consistent with the liberal “notice” pleading standards embodied in the Federal Rules of Civil Procedure. See Fed. R. Civ. Pro. 8(a); see also Ervin and Associates, Inc. v. Dunlap, 33 F.Supp.2d 1, 13 (D.D.C. 1997) (refusing to find that a claim to “enjoin further illegal acts” should be dismissed for lack of specificity).

Defendant asks the Court to impose a level of specificity on Plaintiffs’ prayer for relief that is contrary to both the plain language and the legislative intent of § 702 of the APA. The language of this section clearly states that it is the “injunctive decree” issued by the court, and not the Plaintiffs’ request for such relief, that must specify “the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance.” Def.’s Supp. Br. at 11 (quoting 5 U.S.C. § 702). The legislative history of this provision also supports this plain reading of the language. 8  {p.13}

The injunctive relief sought by Plaintiffs is within the Court’s power to order and would not infringe upon the powers of the political branches to conduct foreign affairs. An injunctive decree allowing Chagossians the right to return to portions of the Chagos Archipelago that are not being used for military purposes does not challenge foreign policy, defense policy, or national security decisions. See Pls.’ Opp. to Def. U.S. at 8-21. Plaintiffs recognize the strategic importance of existing military operations on Diego Garcia and have no intention of interfering with those operations.

VI.
Conclusion

The issues being considered in this motion are critically importance not only for the just and expeditious resolution of the instant litigation, but also for the larger international community, which has turned its deliberative attention to Plaintiffs’ case. Following the decision invalidating the BIOT immigration ordinance that led to the removal of the Chagossians, 9  courts in the United Kingdom are now considering what relief the British government must render to the Chagossians for the Crown’s role in facilitating Defendant’s appropriation of the Chagos Archipelago. Several Chagossians have testified in these proceedings. International human rights leaders such as Nelson Mandela recently have met with the Chagossians in recognition of their plight and as a sign of support for the Chagossian community. ¶

Recognizing the importance of these issues, Plaintiffs respectfully renew their request that the Court set a hearing date to address this and all other outstanding motions before the Court.

For the foregoing reasons, Plaintiffs respectfully request the Court to deny Defendant United States of America’s Motion to Dismiss and to allow this action to proceed to discovery so that Plaintiffs may have a chance to have their case fully litigated. {p.14}


Signature: Michael E. Tigar

 

Respectfully submitted,


{Signature}

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

Attorney for Plaintiffs {p.16}

______________________

Certificate of Service

I, Karen Heymann, hereby certify that on this 2nd day of December, 2002, I caused to be served by facsimile and first-class mail, postage pre-paid, a true copy of the foregoing Plaintiffs’ Reply to Defendant United States’ Court-Ordered Supplemental Brief 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

Signature: Karen Heymann

 

{Signature}

Karen Heymann

Footnotes

Each footnote appears entirely on the same page with its text reference, except where an embedded page reference marks a carryover to the foot of the next page (n.4, n.6).  CJHjr

 1  Plaintiffs satisfy the traditional test for reviewability under the APA by demonstrating that they have been “adversely affected or aggrieved” by the challenged action and that “the injury complained of falls within the ‘zone of interests’ sought to be protected by” the ATCA. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 872 (1990) (citing Clarke v. Securities Indus. Assn., 479 U.S. 388, 396-397 (1987)). Plaintiffs’ international law claims fall within the “zone of interests” covered by the ATCA because the Chagossians are aliens alleging that they have been personally harmed by the tortious conduct of the U.S. in violation of customary international laws as well as jus cogens norms.

 2  The court dismissed Plaintiffs’ claims in Rasul v. Bush {70kb.pdf} {reversed June 28 2004 (U.S., No. 03-343) (521kb.pdf)} because their claim fell within the APA’s military exception, providing an exemption for “military authority exercised in the field in time of war or in occupied territory.” 5 U.S.C. § 701(b)(1)(G). Plaintiffs in Rasul were captured by the United States military while engaged in operations in Afghanistan. In contrast, the Chagossians’ forced relocation did not occur as a result of any aggression towards the United States or the United Kingdom. The military exemption of the APA is unavailable to Defendant United States in the instant case because they were not exercising their authority “in time of war or in occupied territory” when they chose to forcibly relocate Chagossians to establish a military base on Diego Garcia.

 3  See section III of this brief for more details on the United States’ fraudulent concealment and the lack of informed consent by Congress when it acted to approve funding to expand the base.

 4  See Pls.’ Supp. Br. at 5 & n.11 (analyzing the non-substitutionary nature of restitution). The duties arising from restitution principles are well-defined. “The D.C. Circuit has defined restitution as that body of law in which (1) substantive liability is based on defendant’s unjust enrichment; (2) the measure of recovery is based on defendant’s {p.6} gain instead of plaintiff’s loss; or (3) the court restores to plaintiff his lost property or its proceeds, in kind.” U.S. v. Philip Morris, Inc. {40kb.pdf}, 2002 WL 1925881 at *4 (D.D.C. July 1, 2002) (finding that prayer for a disgorgement order fits squarely within restitution) (citing Crocker v. Piedmont Aviation, Inc. {59 kb}, 49 F.3d 735, 747 (D.C. Cir. 1995)).

 5  Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants {575 kb}, Hearings Before the House Spec. Subcomm. on Investigations of the Comm. on Int’l Relations, 94th Cong. (1975), was attached as Exhibit D to Defendant United States’ Motion to Dismiss.

 6  Defendant’s argument not only overreaches but also contradicts itself. Defendant contends on the one hand that “restrictions on actions of the United States cannot come from application of laws of the United States,” but later in the same sentence explains that such restrictions may be “imposed...through diplomatic understanding, treaty, or {p.12} legislation” Def.’s Supp. Br. at 9-10 (emphasis added). Defendant’s argument is facially inconsistent and should be rejected by the Court.

 7  See Pl. Supp. Br. at 5-6. Plaintiffs pray for an immediate return to the entire Chagos Archipelago and limited commercial access to the airstrip on Diego Garcia pursuant to their claims for forced relocation, genocide, torture, and cruel, degrading, and inhuman treatment. Plaintiffs also seek an injunctive disgorgement order to remedy harms sustained as a result of forced relocation. In addition, Plaintiffs seek “equal access to the Chagos Archipelago and to employment on Diego Garcia” pursuant to their claim for racial discrimination.

 8  In addition to creating a waiver of sovereign immunity for actions brought under the APA by amending § 702, Congress also liberalized the pleading requirements by amending § 703 to permit a plaintiff to name the United States or the agency instead of the particular officers as a defendant. This was “intended to eliminate technical problems arising from a plaintiff ’s failure to name the proper Government officer as a defendant.” S. Rep. No. 94-996, at 2 (1976). It is inconsistent to construe § 702 as imposing precisely the same burden on the plaintiff in relation to defining their prayer for relief, that Congress removed in relation to defining individual officers who plaintiffs wish the court to enjoin. See also H.R. Rep. No. 94-1656, at 11-12 (1976).

 9  The Queen v. Sec’y of State for the Foreign & Commonwealth Office: ex parte Bancoult, 2 W.L.R. 1219 (2000), 2000 WL 1629583 (QBD (Admin. Ct.)).

 

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. 28 2002. Updated May 30 2008.

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