Bancoult v. McNamara, Civil Action No. 01-2629 RMU.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtUrbina
Citation227 F.Supp.2d 144
PartiesOlivier BANCOULT et al., Plaintiffs, v. Robert S. McNAMARA et al., Defendants.
Docket NumberCivil Action No. 01-2629 RMU.
Decision Date30 September 2002
227 F.Supp.2d 144
Olivier BANCOULT et al., Plaintiffs,
v.
Robert S. McNAMARA et al., Defendants.
Civil Action No. 01-2629 RMU.
United States District Court, District of Columbia.
September 30, 2002.

Page 145

Michael Tigar, Washington, DC, for plaintiffs.

Cynthia T. Andreason, Katherine S. Kamen, LeBoeuf, Lamb, Greene & MacRae, L.L.P., Washington, DC, for defendant DCDM.

Harry M. Reasoner, Scott J. Atlas, Vinson & Elkins, L.L.P., Houston, TX, John D. Taurman, Michael R. Charness, Vinson & Elkins, L.L.P., Washington, DC, for defendant Halliburton.

Richard Montague, Washington, DC, for individual federal defendants.

Elaine Marzetta Lacy, Washington, DC, for defendant United States.

MEMORANDUM OPINION

URBINA, District Judge.


ORDERING FURTHER BRIEFING ON DEFENDANT UNITED STATES' MOTION TO DISMISS; GRANTING DEFENDANT DCDM'S MOTION TO DISMISS; DENYING THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION; AND STRIKING THE PLAINTIFFS' MOTION FOR AN ANTISUIT INJUNCTION AND SANCTIONS AGAINST DEFENDANT DCDM

I. INTRODUCTION

This action takes us to the middle of the Indian Ocean, to the tiny islands of the Chagos Archipelago ("Chagos"). The plaintiffs are indigenous Chagossians, their survivors, and their direct descendants ("the plaintiffs"). They bring this action

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against the United States and De Chazal Du Mee & CIE ("DCDM") (collectively, "the defendants").1 The plaintiffs now move for a preliminary injunction barring the defendants from engaging in allegedly discriminatory policies and practices that deny the plaintiffs access to Chagos and to employment on Diego Garcia, one of the Chagos islands. The defendants move to dismiss the complaint on jurisdictional grounds. Defendant United States argues that this court lacks subject-matter jurisdiction based on sovereign immunity, the political question doctrine, and lack of standing. Defendant DCDM, a Mauritian corporation, asks the court to dismiss the complaint based on ineffective service of process and lack of personal jurisdiction. Separately, the plaintiffs also move for an antisuit injunction and sanctions against DCDM. For the reasons that follow, the court orders further briefing on defendant United States' motion to dismiss, grants defendant DCDM's motion to dismiss, denies the plaintiffs' motion for a preliminary injunction, and strikes the plaintiffs' motion for an antisuit injunction and sanctions against defendant DCDM.

II. BACKGROUND
A. Factual Background2

Chagos is a grouping of small islands in the middle of the Indian Ocean, at least 1,000 miles away from the nearest landmasses of India, Mauritius, Australia, and the Gulf States. Compl. ¶ 10. It includes the islands of Diego Garcia, Peros Banhos, Salomon, and numerous other small islands. Id. ¶ 8. Ceded to the United Kingdom by the French in 1814, Chagos became part of the British colony of Mauritius, and continues under British administration today. Id. ¶¶ 9-10, 18. Its population, which numbered more than 550 in 1861, had grown to approximately 1,000 inhabitants by the 1960s. Id. ¶¶ 8, 10. During that period, the Chagossians established communities by working at the local copra (coconut product) plantations, cultivating vegetables, raising animals, attending church, and educating their children, and otherwise engaging in community life. Id. ¶ 11.

In 1964, the British and United States governments entered into negotiations to establish a U.S. military facility in the Indian Ocean. Id. ¶ 17. One year later, the British detached Chagos from Mauritius and incorporated the archipelago in a newly created British Indian Ocean Territory ("BIOT"). Id. ¶ 9. Subsequently, the Chagos population was removed to Mauritius and Seychelles. Id. ¶¶ 21-23. Diego Garcia, the largest of the Chagos islands, then became home to the proposed U.S. military facility. Id. ¶ 25.

The plaintiffs in this action are three individuals and two organizations. Plaintiff Bancoult is a native Chagossian who

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alleges that in 1967, his family was prevented from returning home to Peros Banhos after a medical visit to Mauritius. Id. at 31. Plaintiff Bancoult alleges that he and his family suffered abject poverty in Mauritius and that he has been rejected repeatedly for employment on Diego Garcia. Id. Plaintiff Mein is a native Chagossian who reports that in 1971 and 1972, persons acting on behalf of the U.S. and British governments forced her family to board a vessel from Diego Garcia to Peros Banhos and, later, to Seychelles. Id. at 32. She alleges that the harsh conditions of passage caused her to miscarriage. Id. Plaintiff France-Charlot was born in Mauritius and is a first-generation descendant of Chagossians native to Salomon Island. Id. ¶ 33. She alleges that as a result of the poverty her family suffered in Mauritius, she suffered social, cultural, and economic oppression. Id. Plaintiffs Chagos Refugee Group and Chagos Social Committee are organizations whose principal interest is the betterment of the Chagossian community in, respectively, Mauritius/Agalega and Seychelles. Id. ¶¶ 34-35.

The plaintiffs characterize the events leading up to the establishment of the U.S. facility on Diego Garcia as fraught with secret agreements, manipulation, and concealment on the part of the U.S. and British governments. E.g., id. ¶¶ 17-18, 20. The plaintiffs allege that the United States and/or its agents physically removed them from Chagos between 1965 and 1971 by the United States and/or its agents and that their exile continues today through the defendants' employment discrimination. Id. ¶¶ 21-23, 26, 61, 74, 76.

B. Procedural History

On December 20, 2001, the plaintiffs filed a complaint against the United States, DCDM, and two other defendants alleging forced relocation, torture, racial discrimination, cruel, inhuman, and degrading treatment, genocide, intentional infliction of emotional distress, negligence, and trespass. Id. ¶¶ 59-101. The plaintiffs request relief in the form of compensatory damages, punitive damages, and injunctive and declaratory relief. Id. at 37-38.

On March 21, 2002, defendant United States filed its motion to dismiss the complaint. The United States argues that this court lacks subject-matter jurisdiction because of the doctrines of sovereign immunity and political question, and for lack of standing. Def. U.S.' Mot. to Dismiss at 1-2.

On March 27, 2002, defendant DCDM also filed a motion to dismiss the complaint. DCDM contends that the plaintiffs failed to effectively serve DCDM with a summons or to allege a statutory or constitutional basis for personal jurisdiction against DCDM. Def. DCDM's Mot. to Dismiss at 5, 23-24. On April 12, 2002, the plaintiffs responded with a motion for leave to conduct immediate discovery and for an enlargement of time to respond to DCDM's motion to dismiss. Pls.' Mot. for Leave to Conduct Immediate Disc. ("Pls.' Mot. for Leave"). In addition, on August 1, 2002, the plaintiffs moved for an antisuit injunction and sanctions against DCDM. Pls.' Mot. for an Antisuit Injunction and Sanctions.

On February 14, 2002, the plaintiffs moved for a preliminary injunction to bar defendants United States and DCDM from engaging in allegedly discriminatory policies and practices that deny the plaintiffs access to Chagos and to employment on Diego Garcia. Pls.' Mot. for Prelim. Inj. at 1.

III. ANALYSIS
A. The Court Orders Further Briefing by the Parties on Subject-Matter Jurisdiction

As noted, defendant United States brings a motion to dismiss the complaint

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on several grounds. At the outset, the court must assure itself that subject-matter jurisdiction exists over this action. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Cobell v. Norton, 240 F.3d 1081, 1094 (D.C.Cir.2001). When a plaintiff brings an action against the United States, establishing subject-matter jurisdiction requires an additional step, as the United States cannot be sued absent an explicit statutory waiver of sovereign immunity.3 Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations omitted); Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 463-64 (D.C.Cir.1999).

In this case, neither the complaint nor the plaintiffs' subsequent submissions provide sufficient clarity about the pending claims to allow this court to determine whether subject-matter jurisdiction exists. The plaintiffs assert claims of forced relocation, torture, racial discrimination, cruel, inhuman, and degrading treatment, and genocide. Compl. ¶¶ 59-87. But the plaintiffs do not always identify the specific legal basis for each claim. Id. Nor do they indicate the specific relief sought pursuant to each claim. Id. at 38-39. Because waivers of federal sovereign immunity turn on the basis of the claim and the type of relief sought,4 the court cannot make an initial5 jurisdictional determination until the plaintiffs provide clarification on jurisdictional issues.

Courts often provide the parties an opportunity to submit supplemental memoranda on the question of subject-matter jurisdiction. Saadeh v. Farouki, 107 F.3d 52, 53 (D.C.Cir.1997); First Va. Bank v. Randolph, 110 F.3d 75, 77 (D.C.Cir.1997). In keeping with this tradition, the court directs the plaintiffs to submit a supplemental memorandum that answer the following questions, with citation to supporting legal authority:

1. What is the specific statutory, common law, or international law (treaty or customary international law) basis for each claim against the United States, and have the plaintiffs met all jurisdictional conditions associated therewith? For example, if the plaintiffs are asserting a claim based on an international convention, does that convention

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or its implementing legislation confer an individual right of action so as to satisfy the "arising under" requirement of federal...

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36 practice notes
  • Bank of Am., N. A. v. Fed. Deposit Ins. Corp., Civil Action No. 10–CV–1681 (BJR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...Court deems the argument conceded and will grant the FDIC's motion to dismiss as to Counts II, IV and VII. See Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) (“if the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, th......
  • Porter v. Fulgham, Civil Action No. 04-1440 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 9, 2009
    ...Rule 7(b) in granting as conceded the defendant's motion to dismiss when the plaintiffs failed to oppose it); Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) ("[I]f the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, t......
  • U.S. v. Real Property, Civil Action No. 01-706 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 21, 2003
    ...Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002) (citations omitted); see also Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) ("[I]f the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, the ......
  • Bernstein v. Ga. Dep't of Educ., No. 1:11–cv–3989–WSD.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 4, 2013
    ...claim where Plaintiff's response brief failed to address Defendant's statute of limitations argument); cf. Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) (if party opposing motion to dismiss files a responsive memorandum, but fails to address arguments the movant makes, court may......
  • Request a trial to view additional results
36 cases
  • Bank of Am., N. A. v. Fed. Deposit Ins. Corp., Civil Action No. 10–CV–1681 (BJR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 10, 2012
    ...Court deems the argument conceded and will grant the FDIC's motion to dismiss as to Counts II, IV and VII. See Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) (“if the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, th......
  • Porter v. Fulgham, Civil Action No. 04-1440 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 9, 2009
    ...Rule 7(b) in granting as conceded the defendant's motion to dismiss when the plaintiffs failed to oppose it); Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) ("[I]f the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, t......
  • U.S. v. Real Property, Civil Action No. 01-706 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 21, 2003
    ...Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002) (citations omitted); see also Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) ("[I]f the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, the ......
  • Bernstein v. Ga. Dep't of Educ., No. 1:11–cv–3989–WSD.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 4, 2013
    ...claim where Plaintiff's response brief failed to address Defendant's statute of limitations argument); cf. Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C.2002) (if party opposing motion to dismiss files a responsive memorandum, but fails to address arguments the movant makes, court may......
  • Request a trial to view additional results

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