Bancoult v. McNamara

• Citation: 445 F.3d 427
• Decision Date: 21 April 2006
• Docket Number: No. 05-5049.,05-5049.
• Parties: Olivier BANCOULT, et al., Appellants v. Robert S. McNAMARA, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

445 F.3d 427

Olivier BANCOULT, et al., Appellants v. Robert S. McNAMARA, et al., Appellees.

No. 05-5049.

United States Court of Appeals, District of Columbia Circuit.

Argued February 16, 2006.

Decided April 21, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 01cv02629).

Darrell Chichester, student counsel, argued the cause for appellants. With him on the brief was Michael E. Tigar. Aaron Lloyd, Ali A. Beydoun, Christine Parsadaian, Courtney J. Nogar, Debra L. Spinelli-Hays, Emily Creighton, James B. Cowden, Jennifer Dodenhoff, Karen Corrie, Laura Rotolo, Melissa Mandor, and Timothy L. Foden, student counsel, entered appearances.

Mark R. Freeman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Daniel Meron, Acting Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B. Stern, Attorney. Dana J. Martin, Attorney, entered an appearance.

Before: TATEL, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

In this case, we confront serious allegations involving events occurring forty years ago on the far side of the world. Appellants claim the United States government forcibly removed them from their homes on islands in the Indian Ocean in order to construct a military base. The district court dismissed all of Appellants' claims against the United States and the individual defendants. We affirm the district court's decision, finding that Appellants' claims present nonjusticiable political questions.

I

In his historic speech at Westminster College on March 5, 1946 — the speech in which he first warned that an "iron curtain" had descended over Europe — Sir Winston Churchill described the "special relationship between the British Commonwealth and Empire and the United States." Blood, Toil, Tears and Sweat: The Speeches of Winston Churchill 301 (David Cannadine ed., 1989). Facing a looming Communist threat, Churchill argued that a key component of this special relationship needed to be military cooperation between the two nations, cooperation that included "joint use of ... Naval and Air Force bases." Id. The dispute we address today arose from one of many instances in which Churchill's call to collaboration was heeded: the construction of the United States Navy Support Facility Diego Garcia in the British Indian Ocean Territory (BIOT).

The Chagos Archipelago, including the island of Diego Garcia, is located in BIOT; the British have controlled these islands since 1814. Appellants Olivier Bancoult, Jeanette Therese Alexis, and Marie Isabelle France-Charlot claim to be indigenous people of Chagos and the direct descendants of indigenous Chagossians. Appellants Chagos Refugee Group and Chagos Social Committee are nonprofit associations that work to further the welfare of the Chagossians. Appellants allege that, in 1964, the British and American governments began secretly negotiating the establishment of a U.S. military base in the Indian Ocean; following the "Anglo-American survey," the governments decided upon Diego Garcia as the location for this base. According to Appellants, the two countries decided to depopulate the entire archipelago, obscuring the true nature of their decision by portraying the islands' inhabitants as seasonal contract workers from Mauritius and Seychelles rather than permanent citizens of BIOT.

As described by Appellants, the depopulation of the islands occurred in three stages. First, beginning in 1965, Chagossians who traveled outside the archipelago were not allowed to return. Next, the United States allegedly placed an embargo on the islands to prevent the delivery of food supplies in order to starve the inhabitants out of the islands. According to Alexis, residents were threatened with death if they did not leave, and all the cats and dogs on Diego Garcia were slaughtered. In the third stage, Appellants claim, the remaining inhabitants of Diego Garcia were forced onto ships and sent to other islands in the archipelago; the entire population of the archipelago was removed two years later. Alexis claims the Chagossians were not fed during the six-day sea voyage in harsh conditions; she states that her mother was pregnant at the time of the journey but miscarried the day after arriving in Seychelles.

Appellants contend the Chagossians were stranded in Mauritius and Seychelles without housing, employment, or other assistance, and have been denied the right to return to Chagos ever since. Instead, Appellants state, they have been forced to live in abject poverty in a foreign land, separated from their family graves and native community. Appellants claim that they have become ill by being exposed to diseases unknown in Chagos and by living in impoverished and squalid conditions. Bancoult states that his brother committed suicide due to the frustration of not being able to provide for his family in Mauritius. Appellants claim their real and personal property on Diego Garcia was destroyed during the construction of the military base. Finally, Appellants claim that the United States has discriminated against them in its hiring practices at the Diego Garcia base, hiring laborers from Mauritius, Seychelles, Sri Lanka, and the Philippines but refusing to hire any Chagossians (other than a few who concealed their ethnic heritage).

II

Appellants filed suit against the United States on December 20, 2001, on behalf of themselves and all similarly situated Chagossians, seeking compensatory and punitive damages as well as declaratory and injunctive relief.¹ Several current and former senior officials in the Departments of Defense and State were also named as defendants under the Alien Tort Statute, 28 U.S.C. § 1350; the Chagossians claimed that these officials knew or should have known of the decisions regarding depopulation and base construction and had direct authority over those who carried out the actions that harmed the islanders.² The Chagossians' claims included forced relocation; torture; racial discrimination; cruel, inhuman, or degrading treatment; genocide; intentional infliction of emotional distress; negligence; trespass; and destruction of real and personal property.

The United States and the individual defendants filed motions to dismiss, which the district court granted on December 21, 2004. Bancoult v. McNamara, 370 F.Supp.2d 1 (2004). The court began by addressing the claims against the individual defendants, granting those defendants immunity under the Westfall Act, 28 U.S.C. § 2679. Bancoult, 370 F.Supp.2d at 6-10. Under the Westfall Act, if the Attorney General certifies that an employee of the federal government was "acting within the scope of his office or employment" at the time of an incident, any claims arising out of that incident are converted into claims against the United States under the Federal Tort Claims Act (FTCA). Id. at 6 (quoting 28 U.S.C. § 2679(d)(1)). The Attorney General so certified, and the district court found that the Chagossians did not rebut the certification or show that an exception to Westfall immunity should apply. Id. at 10. Hence, the claims against the individual defendants were converted into FTCA claims against the United States. Id. The district court then dismissed these claims, finding that the Chagossians had failed to exhaust their administrative remedies, as required by 28 U.S.C. § 2675(a), and that the claims would be barred because the injuries were suffered on foreign soil, an exception established by 28 U.S.C. § 2680(k). Id. at 10-11 & n. 8.

Next, the district court turned to the political question doctrine, dismissing the remaining claims against the United States for lack of subject matter jurisdiction. Id. at 12-17. Applying the factors enumerated in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the court found that (1) the "conduct of military operations and foreign policy complained of in this case" was the exclusive province of the political branches, Bancoult, 370 F.Supp.2d at 15; (2) the court lacked adequate standards by which to judge the "foreign policy and national security concerns" involved in the case, id.; (3) the court could not appropriately "determine the national defense needs of the U.S. military in the Indian Ocean," id. at 16; (4) entertaining the Chagossians' claims would require the court to condemn the actions of Congress and the executive, showing a lack of respect for the political branches, id.; (5) unquestioning adherence to the political branches' decision to construct the military base was required, id. at 17; and (6) disturbing the government's "single voice" on this issue would subject all three branches to potential embarrassment, id.³

III

We begin our discussion by clarifying the sequence in which we must address the issues raised. The "first and fundamental question" that we are "bound to ask and answer" is whether the court has jurisdiction to decide the case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). "The requirement that jurisdiction be established as a threshold matter `springs from the nature and limits of the judicial power of the United States' and is `inflexible and without exception.'" Id. at 94-95, 118 S.Ct. 1003 (brackets omitted) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)). Therefore, a court must "address questions pertaining to its or a lower court's jurisdiction before proceeding to the merits." Tenet v. Doe, 544 U.S. 1, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82 (2005).

As we recently stated, "the courts lack jurisdiction over political decisions that are by their nature `committed to the political branches to the exclusion of the judiciary.'"...