Bancoult v. McNamara

• Decision Date: 21 December 2004
• Docket Number: Civil Action No. 01-2629 (RMU).
• Citation: 370 F.Supp.2d 1
• Parties: Olivier BANCOULT et al., Plaintiffs, v. Robert S. McNAMARA et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

370 F.Supp.2d 1

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.

December 21, 2004.

Michael E. Tigar, Washington, DC, for Plaintiffs.

Richard Montague, Elaine Marzetta Lacy, John David Taurman, Michael R. Charness, Cynthia T. Andreason, Washington, DC, for Defendants.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING THE INDIVIDUAL DEFENDANTS' MOTION TO DISMISS; GRANTING THE DEFENDANT UNITED STATES' MOTION TO DISMISS; AND DENYING THE PLAINTIFF'S SECOND MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

In the middle of the Indian Ocean and at the heart of this action lies the Chagos Archipelago ("Chagos"), a grouping of 52 islands administered by the British government and leased to the United States under the British Indian Ocean Territory Agreement ("BIOT Agreement"). During the late 1960s and early 1970s, the Chagos population was forcibly removed to nearby Mauritius and Seychelles to make way for a U.S. military facility. The plaintiffs in this case are persons indigenous to Chagos, their survivors or direct descendants, and organizations interested in the betterment of the Chagossian community. They bring this action against the United States and various current and former officials of the Department of State and the Department of Defense¹ ("the individual defendants") for forced relocation, torture, racial discrimination, cruel, inhuman, and degrading treatment, genocide, intentional infliction of emotional distress, negligence, and trespass.

The individual defendants move to dismiss the complaint based on the statutory immunity granted to federal officers under the Federal Employee Liability Reform and Tort Compensation Act ("Westfall Act"), lack of subject-matter jurisdiction based on the political question doctrine, and on statute of limitation grounds. The United States moves to dismiss the complaint for lack of subject-matter jurisdiction based on sovereign immunity, the political question doctrine and lack of standing. The plaintiffs oppose these motions and move to strike the United States Attorney General's certification that the individual defendants were acting within the scope of their employment at the time of the alleged incidents. Also pending before the court is the plaintiff's second motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a), which seeks to enjoin the United States from denying the plaintiffs' request for a limited visit to Chagos.

Because the plaintiffs fail to rebut the Attorney General's certification that the individual defendants acted within their scope of employment when the events complained of took place, the court finds that the individual defendants are immune from suit under the Westfall Act and grants their motion to dismiss. As a result, the United States is substituted as the sole defendant. Because this suit raises nonjusticiable political questions and thus precludes this court's review, the court also grants the defendant United States' motion to dismiss. The court's order granting the individual defendants' and the United States' motions to dismiss renders the plaintiffs' second motion for a preliminary injunction moot. Accordingly, the court denies the plaintiffs' second motion for a preliminary injunction.

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.2d Am. Compl. ¶ 10. Chagos 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. Its population, which numbered more than 550 in 1861, grew to approximately 1,000 inhabitants by the 1960s. Id. ¶¶ 8, 10. For over a century, the Chagossians established communities by working at the local copra (coconut product) plantations, cultivating vegetables, raising animals, attending church, burying their dead, educating their children, and otherwise engaging in community life. Id. ¶ 11.

The plaintiffs allege that in 1964, the British and the United States governments entered into secret negotiations to establish a United States military facility in the Indian Ocean. Id. ¶ 17. According to the plaintiffs, the two governments conducted a survey and concluded that the construction of a military base in Diego Garcia would require the displacement of the entire indigenous population living in the island. Id. In 1965, at the request of the United States, the British government split Chagos from Mauritius before the latter became independent from Britain and incorporated the islands into the newly formed British Indian Ocean Territory ("BIOT"). Id. ¶ 9. The plaintiffs allege that between 1965 and 1973, the defendants and/or their agents forcibly removed, in stages, the Chagos population to Mauritius and Seychelles. Id. ¶¶ 21-23. During the first stage, the defendants and/or their agents blocked the plaintiffs' return to Chagos after travel outside the archipelago. Id. ¶ 22(a). In the second stage, the defendants imposed an embargo restricting the flow of food supplies to Chagos. Id. ¶ 22(b). Finally, the defendants and/or their agents physically corralled the population remaining on Diego Garcia and boarded them on overcrowded ships for Peros Banhos and Salomon, from whence they eventually were taken to Mauritius and Seychelles. Id. ¶¶ 22(c)-23. Diego Garcia, the largest of the Chagos islands, then became home to the proposed U.S. military facility. Id. ¶ 25.

In June of 1975, Congress debated the undergoing construction of a military facility on Diego Garcia. See generally Diego Garcia, 1975; The Debate Over the Base and the Island's Former Inhabitants: Hearings Before the Special Subcommittee on Investigations of the Committee on International Relations of the House of Representatives, 94th Cong., 1st Sess. 1-123 (1975) (hereinafter "The 1975 Congressional Debate Over Diego Garcia"). Congress met again on November 4, 1975, to address the removal of the Chagossian population from the Archipelago. Id. at 37-81. Members of Congress voiced harsh criticism at representatives from the Executive branch for not providing assistance to the Chagossian population and leaving those arrangements to the British and Mauritian governments. Id. at 46, 66, 68, 71. Notwithstanding the revelations made during these hearings, Congress appropriated funds to support the construction of a military base on Diego Garcia.

The plaintiffs in this action are three individuals and two organizations. Plaintiff Bancoult is a native Chagossian who alleges that in 1967, his family was prevented from returning home to Peros Banhos after a medical visit to Mauritius. Id. ¶ 31. Plaintiff Bancoult alleges that he and his family did not receive any relocation assistance and therefore suffered abject poverty in Mauritius. Id. Plaintiff Bancoult also alleges that he has been rejected repeatedly for employment on Diego Garcia. Id. Plaintiff Alexis is a native of Diego Garcia, who reports that in 1971 and 1972, persons acting on behalf of the U.S. and Britain forced her family and others to board a vessel from Diego Garcia to Peros Banhos and later, to Seychelles. Id. ¶ 32. She alleges that the harsh conditions of passage caused her pregnant mother to miscarry. 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 endured in Mauritius, she suffered social, cultural, and economic oppression. Id. Plaintiffs Chagos Refugee Group and the Chagossian Committee (Seychelles) are organizations whose principal interest is the betterment of the Chagossian community in, respectively, Mauritius (including Agalega) and Seychelles. Id. ¶¶ 34-35.

B. Procedural History

In December 2001, the plaintiffs filed a complaint against the United States, the individual defendants, Halliburton, and a Mauritian company named De Chazal Du Mee & Cie ("DCDM"). A few months later, the plaintiffs moved for a preliminary injunction to bar the United States and DCDM from engaging in alleged employment discriminatory policies and practices. The United States, the individual defendants, and DCDM responded by filing motions to dismiss, while Halliburton responded with a motion to dismiss and for summary judgment. In September 2002, the court issued a memorandum opinion denying the plaintiffs' motion for a preliminary injunction, ordering further briefing on the United States' motion to dismiss for lack of subject-matter jurisdiction, and granting DCDM's motion to dismiss for ineffective service of process. Bancoult v. McNamara, 227 F.Supp.2d 144 (D.D.C.2002). In response to the court's order directing the plaintiffs to clarify their claims against the United States, the plaintiffs filed a supplemental memorandum stating that: (1) they base their claims on customary international law³ and the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350; (2) they seek declaratory relief, injunctive relief, and restitution; (3) the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., provides a waiver of sovereign immunity; and (4) no waiver of sovereign immunity is necessary for violations of jus cogens norms.⁴ Pls.' Supp. Br. at 1-14.

In November 2002, the plaintiffs moved for leave to amend their complaint to reinstate DCDM and add Brown & Root as defendants. The court issued a memorandum opinion granting the plaintiffs' motion with regard to the United States, the individual defendants, Halliburton, and Brown & Root, and denying the plaintiffs' motion with regard to DCDM. Bancoult v. McNamara, 214 F.R.D. 5 (D.D.C...