Bancoult v. McNamara - Opposition

No. 06-502

In the Supreme Court of the United States

OLIVIER BANCOULT, ET AL., PETITIONERS

v.

ROBERT S. MCNAMARA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

JEFFREY BUCHOLTZ
Acting Assistant Attorney
General

MARK B. STERN
MARK R. FREEMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that petitioners' lawsuit, which challenges the Executive Branch's negotiation and implementation of a formal agreement with the British Government during the Cold War to establish a military base on a British territory in the Indian Ocean, presents a nonjusticiable political question.

2. Whether petitioners' lawsuit is time-barred or suffers from other threshold defects that require dismissal.

In the Supreme Court of the United States

No. 06-502

OLIVIER BANCOULT, ET AL., PETITIONERS

v.

ROBERT S. MCNAMARA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-20) is reported at 445 F.3d 427. The opinion of the district court (Pet. App. 23-55) is reported at 370 F. Supp. 2d 1.

JURISDICTION

The judgment of the court of appeals (Pet. App. 21- 22) was entered on April 21, 2006. A petition for rehear ing was denied on July 11, 2006 (Pet. App. 57). The peti tion for a writ of certiorari was filed on October 9, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners brought this suit against former officials of the United States for alleged torts and violations of international law arising from the displacement of the

local population from the Chagos Archipelago, a British territorial possession in the Indian Ocean, following ne gotiations between the United States and Britain in the 1960s for the construction by the United States of a mili tary base in the archipelago. Pet. App. 2-5. The district court dismissed petitioners' claims on the ground that they present nonjusticiable political questions, id. at 23- 55, and the court of appeals affirmed, id. at 1-22.

A. Background

1. The Chagos Archipelago (Chagos) comprises 52 islands in the middle of the Indian Ocean, more than 1000 miles from the nearest landmasses of India, Africa, and Australia. Pet. App. 23, 25. The archipelago was ceded to Britain by France in 1814 and remains a British territory today. Id. at 25. Initially administered as part of the British colony of Mauritius, Chagos in 1965 was detached and reorganized into the British Indian Ocean Territory (BIOT). Id. at 26.

In the 1960s, when the events at issue in this case occurred, the population of the archipelago numbered approximately 1000. Pet. App. 25. Petitioners allege that in 1964, the United States entered into negotiations with the British government to establish a military base in the Indian Ocean. A survey concluded that the archi pelago would provide a suitable location for such a facil ity. The survey also concluded, however, that to con struct and operate such a facility, it would be necessary to displace the local population. Id. at 3, 26.

In 1966, by a formal exchange of notes between the United States government and the British government, the Chagos Archipelago was set aside for the defense needs of the two nations "for an indefinitely long pe riod." See Availability of Certain Indian Ocean Islands for Defense Purposes (BIOT Agreement), Dec. 30, 1966, U.S.-U.K., 18 U.S.T. 28, 30. Subsequently, as contem plated during the negotiation of the BIOT Agreement, the Commissioner for the BIOT adopted the Immigra tion Ordinance, 1971 (BIOT), pursuant to which the local population in the Chagos Archipelago was relocated to Mauritius and Seychelles. See generally Regina (Bancoult) v. Secretary of State for Foreign & Common wealth Affairs, [2001] Q.B. 1067, 1075; see Pet. App. 47 ("The removal of the Chagossian population from Chagos was * * * effected under British law and pur suant to the BIOT Agreement."). Petitioners allege that the relocation took place in several stages between 1965 and 1973. Id. at 26.

2. With British consent, the United States built a military facility on Diego Garcia that quickly became a crucial base of operations for American forces in the Indian Ocean. Pet. App. 26. In 1975, military leaders requested funding for a major build-up of the base. Concerned about the military and foreign policy implica tions of an expanded Diego Garcia facility, including particularly the reaction of the Soviet Union, Congress refused to authorize construction until the President himself certified that a U.S. military facility on Diego Garcia was "essential to the national interest of the United States." See Military Construction Authoriza tion Act, 1975, Pub. L. No. 93-552, § 613(a)(1), 88 Stat. 1766. On May 12, 1975, President Ford submitted the following certification to Congress:

In accordance with * * * the Military Construc tion Authorization Act, 1975 (Public Law 93-552), I have evaluated all the military and foreign policy implications regarding the need for United States facilities at Diego Garcia. On the basis of this evalua tion * * * I hereby certify that the construction of such facilities is essential to the national interest of the United States.

H.R. Doc. No. 140, 94th Cong., 1st Sess. 1.

Congress also held a series of hearings on issues re lated to the proposed base, including the fate of the peo ple removed from the Chagos Archipelago. See gener ally Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants: Hearings Before the Special Subcomm. on Investigations of the House Comm. on Int'l Relations, 94th Cong., 1st Sess. (1975). After press accounts indicated that Britain had forced the relocation of people from Chagos, Members of Con gress criticized the Executive Branch for leaving the local population's fate in the hands of the British and Mauritian governments. See id. at 46, 66, 68, 71. Nev ertheless, Congress appropriated funds for the construc tion of the base on Diego Garcia, see Pet. App. 27, and since that time has repeatedly authorized funds for its expansion.1 The base today provides a variety of critical support services to American and British forces de ployed in the Middle East, including in Iraq and Afghan istan. See id. at 26-27, 50 n.10.

Notwithstanding the American military presence, the British government retains sovereignty over Diego Gar cia and the rest of the Chagos Archipelago. The 1966 BIOT Agreement expressly stipulates that "[t]he Terri tory shall remain under United Kingdom sovereignty." Para. 1, 18 U.S.T. at 28. Even U.S. military personnel are subject to British law while on Diego Garcia: the BIOT Agreement provides that "authorities of the Ter ritory shall have jurisdiction over the members of the United States Forces with respect to offenses commit ted within the Territory and punishable by the law in force there." Annex II, para. 1(a)(ii), 18 U.S.T. at 34.

3. The displacement of people from the Chagos Ar chipelago is the subject of ongoing litigation in the Brit ish courts. On March 3, 1999, petitioner Olivier Ban coult filed an application for judicial review in the Brit ish courts to challenge the validity of the BIOT Immi gration Ordinance, 1971. See Regina (Bancoult), [2001] Q.B. at 1070. In November 2000, the British High Court (Queens Bench Division) declared that, although the dislocation of people from Chagos was undertaken for "good reasons * * * dictated by pressing consider ations of military security," Section 4 of the 1971 ordi nance was not a lawful measure for the "peace, order and good government of BIOT," and consequently was invalid. Id. at 1104.

In response, in June 2004, the Queen issued two Or ders in Council prohibiting the former residents from returning to the Chagos Archipelago. Pet. App. 4 n.1. Those orders restored "full immigration control over the entire territory * * * for defence purposes." See For eign and Commonwealth Affairs: British Indian Ocean Territory, 422 Parl. Deb., H.C. (6th ser.) 33WS (2004).2 Petitioners then brought a new suit in the British High Court of Justice (Administrative Court), and in May 2006 the court ruled in petitioners' favor. See Regina (Bancoult) v. Secretary of State for Foreign & Common wealth Affairs, [2006] EWHC 1038 (Admin.). The Brit ish Government's appeal from that ruling is now pend ing.

B. Procedural History

1. Petitioners filed this putative class action in De cember 2001, seeking money damages (including puni tive damages) on a variety of international law and common-law tort theories. Pet. App. 4-5. In December 2004, the district court accepted the government's scope-of-employment certification under the Westfall Act, and dismissed petitioners' claims against the indi vidual federal officials in favor of claims against the United States under the Federal Tort Claims Act (FTCA). Id. at 31-39; see 28 U.S.C. 2679(d)(1); United States v. Smith, 499 U.S. 160, 163 (1991). The district court then dismissed petitioners' FTCA claims, conclud ing that petitioners had failed to exhaust their adminis trative remedies under 28 U.S.C. 2675(a) and that, in any event, any FTCA claim based on petitioners' re moval from Chagos would be barred under the foreign country exception, see 28 U.S.C. 2680(k). Pet. App. 6, 39-42 & n.8.

Turning to petitioners' remaining claims, the district court determined that the merits of petitioners' chal lenge to the United States' policies in the Indian Ocean presented political questions beyond the court's power to adjudicate. Pet. App. 43-54. The court concluded that the gravamen of the suit was an attack on the Executive Branch's judgment and priorities in matters of interna tional diplomacy and national security, reasoning that such matters are "'plainly the province of Congress and the Executive[,]' and thus are non-justiciable political questions." Id. at 48 (quoting Luftig v. McNamara, 373 F.2d 664, 665-666 (D.C. Cir.), cert. denied, 387 U.S. 945 (1967)). Accordingly, the district court granted the gov ernment's motion to dismiss the suit as nonjusticiable. Id. at 55.

2. The court of appeals unanimously affirmed, hold ing that the action was properly dismissed on political question grounds. Pet. App. 1-20. In reaching that con clusion, the court followed the framework established by Baker v. Carr, 369 U.S. 186 (1962), and the court's re cent application of the Baker factors in Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1768 (2006). See Pet. App. 10-13.

Petitioners conceded on appeal that "the decision to establish a military base on Diego Garcia" is not judi cially reviewable, see Pet. App. 15, but asserted that the district court could nonetheless entertain damages claims challenging the particular manner in which the United States implemented that policy decision, see ibid. The court of appeals rejected that argument, ex plaining:

[T]he policy and its implementation constitute a sort of Möbius strip that we cannot sever without impermissibly impugning past policy and promising future remedies that will remain beyond our ken. * * * We cannot second guess the degree to which the executive was willing to burden itself by protect ing the Chagossians' well-being while pursuing the foreign policy goals of the United States; we may not dictate to the executive what its priorities should have been. * * * If we were to hold that the execu tive owed a duty of care toward the Chagossians, or that the executive's actions in depopulating the is lands and constructing the base had to comport with some minimum level of protections, we would be meddling in foreign affairs beyond our institutional competence.

Id. at 16-17. Because adjudicating petitioners' claims would thus "require the court to judge the validity and wisdom of the executive's foreign policy decisions," id. at 19, the court held that the claims against the United States were properly dismissed under the principles established by this Court in Baker.

The court of appeals also affirmed the dismissal of petitioners' claims against the individual federal defen dants. Pet. App. 18-20. Without reaching the question whether the Westfall Act barred any claims against the individual defendants in favor of claims against the United States under the FTCA, the Court had "little trouble" rejecting petitioners' argument that the indi vidual defendants' "acts fell outside the scope of their employment and therefore receive no shelter from the political question doctrine." Id. at 18, 19 n.6. The court observed that "[a]ll the acts alleged to have harmed the Chagossians directly furthered, or at least were inciden tal to, th[e] authorized goal" of depopulating the island and establishing a secure military base. Id. at 19. Ac cordingly, the court rejected petitioners' efforts to hold the individual defendants liable for conduct that would not be justiciable in a suit against the government: "[W]hen the political question doctrine bars suit against the United States, this constitutional constraint cannot be circumvented merely by bringing claims against the individuals who committed the acts in question within the scope of their employment." Id. at 20.

3. Petitioners petitioned for rehearing, arguing for the first time that the courts of the United States are bound by principles of comity and reciprocity to defer to the judgment of British courts concerning petitioners' right to return to the archipelago. See Pet. App. 68-75 (rehearing petition). The court of appeals denied the petition with no judge voting to grant rehearing. Id. at 57-58.

ARGUMENT

The unanimous decision of the court of appeals is correct and does not conflict with any decision of this Court or any court of appeals. This Court recently de nied certiorari in a similar lawsuit that was dismissed on political question grounds. See Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1768 (2006). Further review is likewise not warranted here.

1. The court of appeals correctly held that petition ers' claims are not judicially cognizable. Petitioners' lawsuit attacks the Executive Branch's negotiation and implementation of a formal international agreement with a strategic ally for the establishment of a secure military base in the Indian Ocean during the height of the Cold War. As the court of appeals recognized, such claims are beyond the power of the federal courts to ad judicate. "The conduct of the foreign relations of our government is committed by the Constitution to the Ex ecutive and Legislative-'the political'-Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); see Haig v. Agee, 453 U.S. 280, 292 (1981) ("Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.").

Here, the Executive Branch determined that critical national security considerations-including the spread of Soviet influence in the Indian Ocean region-required the United States to pursue the BIOT Agreement with Britain and build a military facility in the Indian Ocean notwithstanding the potential need for relocation of the local people. Congress, in turn, held hearings on the treatment of the local population, but ultimately ap proved the base and voted to fund its construction and operation. The courts may not now review those deci sions through the prism of tort law. As the court of ap peals explained, the federal judiciary "cannot second- guess the degree to which the executive was willing to burden itself by protecting the Chagossians' well-being while pursuing the foreign policy goals of the United States; we may not dictate to the executive what its pri orities should have been." Pet. App. 17.

Petitioners insist that their claims would not require the courts to second-guess policy choices made by the Executive Branch in the exercise of powers textually committed to it by the Constitution, because "tort claims are governed by legal standards that courts are uniquely capable of discovering and applying." Pet. 20-21. In pe titioners' view, senior Executive Branch officials were bound, on pain of damages, to take special care in nego tiating the BIOT Agreement with the British Govern ment to protect the interests of the local popula tion-British territorial citizens. Yet petitioners make no attempt to explain how a federal court could mean ingfully apply tort-law concepts of reasonableness and undue risk to the sort of diplomatic negotiations and national security judgments at issue here.

As the district court observed:

The allegations made in the complaint would require the court to assess whether it was proper for Britain and the United States to enter an agreement for the construction of a military base[] in Chagos thirty years ago. This would also demand the court to sec ond-guess the initial and continuing decisions of the executive and legislative branches to exclude civil ians from Diego Garcia. Neither our federal law nor customary international law provide standards by which the court can measure and balance the foreign policy considerations at play in this case, such as the containment of the Soviet Union in the Indian Ocean thirty years ago and today, the support of military operations in the Middle East.

Pet. App. 49-50. As the District of Columbia Circuit recently stated in rejecting a similar lawsuit on political question grounds, "recasting foreign policy and national security questions in tort terms does not provide stan dards for making or reviewing foreign policy judg ments." Schneider, 412 F.3d at 197; see Pet. App. 10-12 (discussing Schneider).

Nor, in any event, could the United States by itself grant petitioners the access to Chagos that they de mand. Diego Garcia and the Chagos Archipelago remain under the exclusive sovereignty and control of the Brit ish government, not the United States. For plaintiffs to prevail, the federal courts would be required to ques tion, if not explicitly countermand, the United States' international agreements with the United Kingdom con cerning civilians' rights of access to a British territory. As this Court's cases make clear, the Constitution for bids such a judicial reordering of the Nation's interna tional commitments.

2. Petitioners do not contend that the decision below conflicts with the judgment of any other court of ap peals. Rather, they contend that this Court's review is warranted because the District of Columbia Circuit's political question jurisprudence "confuses discretionary political question justiciability with a lack of federal ju risdiction under Article III," Pet. 10, and thus improp erly "applie[s] the political question doctrine to limit subject matter jurisdiction." Pet. 9. That is incorrect.

This Court has characterized the political question doctrine as an aspect of "the concept of justiciability, which expresses the jurisdictional limitations imposed on the federal courts by the 'case or controversy' re quirement" of Article III of the Constitution. Schle singer v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). The Court has explained that "the pres ence of a political question suffices to prevent the power of the federal judiciary from being invoked by the com plaining party." Ibid.; see Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 (1986) (the political question doctrine "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution" to the political branches). The court of ap peals' description of the political question doctrine as "jurisdictional" was therefore entirely consistent with this Court's own description of the doctrine. Pet. App. 7. In any event, even if the court of appeals's terminol ogy were inapt, its reasoning and judgment are sound.

Similarly, petitioners contend that this Court's re view is necessary because the District of Columbia Cir cuit did not engage in the careful justiciability inquiry required by Baker, but rather "determine[d] that all claims are nonjusticiable if the general subject matter of the case is political." Pet. 14. The court of appeals did nothing of the sort. Indeed, the opinion below not only carefully discussed the Baker factors, id. at 10-13, but expressly stated that "[n]ot every political case presents a political question," Pet. App. 13, and that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," ibid. (quoting Baker, 369 U.S. at 211). As the court of appeals explained, it was not the general subject matter of peti tioners' claims that required dismissal under the politi cal question doctrine, but petitioners' effort to impose tort liability on the United States and senior Executive Branch officials based on quintessential determinations of foreign policy and national security. See id. at 17 ("If we were to hold that the executive owed a duty of care toward the Chagossians, or that the executive's actions in depopulating the islands and constructing the base had to comport with some minimum level of protections, we would be meddling in foreign affairs beyond our in stitutional competence."). That approach fully comports with this Court's admonition that the political question doctrine requires "a discriminating analysis of the par ticular question posed" before dismissal will be justified. Baker, 369 U.S. at 211.

Petitioners also urge that the decision below disre gards this Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Petitioners theorize that if a claim under customary international law satisfies the criteria identified in Sosa for enforceability under the Alien Tort Statute, 28 U.S.C. 1350, then that claim necessarily does not present a political question. See Pet. 19-20. That unfounded argument, which petitioners raised for the first time in their unsuccessful petition for rehearing, erroneously conflates the threshold question of justi- ciability with the existence of a viable cause of action. Sosa did not create an exception to the political question doctrine, and the Alien Tort Statute does not somehow render moot the structural constitutional concerns that animate that doctrine. Where, as here, the constitu tional separation of powers precludes federal courts from passing on the policy determinations of the politi cal branches, it makes no difference whether the under lying cause of action could otherwise be asserted under a statute.

3. In the alternative, petitioners urge the Court to accept review based on the court of appeals' alleged "fail[ure] to take into account parallel litigation in the United Kingdom." Pet. 25. Emphasizing their suc cesses in pending litigation before the British High Court of Justice, petitioners assert that "[c]omity re quired the [District of Columbia] Circuit to remand this case to the District Court for proper attention to the British High Court's judgment." Pet. 26.

That contention is flawed in multiple respects. As an initial matter, although the parallel litigation in British courts was already pending when petitioners filed this appeal, petitioners failed to raise judicial "comity" as a basis for a remand until their petition for rehearing in the court of appeals. See Pet. App. 68. Because peti tioners did not timely raise that argument, the court of appeals did not address it, and there is no warrant for this Court to resolve the issue in the first instance. Moreover, plaintiffs fail to explain how the decisions of the British High Court of Justice concerning the local population's right to return to the Chagos Archipelago under British law are actually inconsistent with the de cisions of the courts below, which addressed petitioners' claims under United States law.

In any event, considerations of international judicial comity cannot overcome the constitutional impediments to judicial review in this case. Because federal courts lack competence to decide political questions that the Constitution assigns to the political branches, see, e.g., Japan Whaling Ass'n, 478 U.S. at 230; Schlesinger, 418 U.S. at 215; Oetjen, 246 U.S. at 302, the court of appeals correctly upheld dismissal of petitioners' complaint, ir respective of the progress of parallel litigation by the same plaintiffs in the courts of the United Kingdom.

4. Lastly, this Court's review is not warranted be cause petitioners' complaint also suffers from a variety of additional jurisdictional defects that the court of ap peals had no occasion to reach. First, as the district court recognized, because the Attorney General has cer tified that the individual federal defendants were acting within the scope of their federal employment, the indi vidual defendants are entitled to dismissal under the Westfall Act, 28 U.S.C. 2679(d)(1), with the United States substituted in their stead. See Pet. App. 31-39. Substitution of the United States under the Westfall Act is required even when relief against the government is precluded under the express terms of the Federal Tort Claims Act. See 28 U.S.C. 2679(d)(4); Gutierrez de Mar tinez v. Lamagno, 515 U.S. 417, 422 (1995); United States v. Smith, 499 U.S. 160, 166 (1991). That is the case here: by petitioners' own account, their alleged injuries arose exclusively in the Chagos Archipelago and on Mauritius, foreign jurisdictions governed by foreign law. Accordingly, under the so-called "foreign country exception" to the FTCA, 28 U.S.C. 2680(k), petitioners cannot avail themselves of the FTCA's limited waiver of sovereign immunity, and their claims are consequently foreclosed. See Pet. App. 6, 41-42 n.8; Sosa, 542 U.S. at 712 ("[T]he FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission oc curred.").

Petitioners' remaining claims against the United States are similarly flawed. Petitioners assert claims under the Alien Tort Statute and assorted principles of international law, but they identify no waiver of sover eign immunity that would permit such claims to proceed against the United States, and none exists. And in any case, petitioners' claims for relief are plainly time- barred. Petitioners contend that the depopulation of the Chagos Archipelago took place between 1965 and 1973. See Pet. 5; Pet. App. 3. This action was not filed until December 2001, nearly thirty years later. Plaintiffs have made no effort to explain why they could not have brought their claims earlier. Indeed, any such argument would seem to be foreclosed by the 1975 congressional hearings and the related press coverage, which exhaustively explored the United States' involvement in the depopulation of the Chagos Archipelago. See gener ally Diego Garcia, 1975: The Debate over the Base and the Island's Former Inhabitants: Hearings Before the Special Subcomm. on Investigations of the House Comm. on Int'l Relations, 94th Cong., 1st Sess. (1975). Whatever statute of limitations may apply to plaintiffs' customary international law claims, it clearly has run. Accordingly, even if judicial review were not precluded under the political question doctrine, dismissal of the complaint would nevertheless be required.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

JEFFREY BUCHOLTZ
Acting Assistant Attorney
General

MARK B. STERN
MARK R. FREEMAN
Attorneys

DECEMBER 2006

1 See, e.g., Military Construction Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 2201(b), 116 Stat. 2687; Military Construc tion Authorization Act for Fiscal Year 1992, Pub. L. No. 102-90, § 2401(b), 105 Stat. 1530; Military Construction Authorization Act, 1988 and 1989, Pub. L. No. 100-180, § 2121(b), 101 Stat. 1189; Military Construction Authorization Act, 1986, Pub. L. No. 99-167, § 201(b), 99 Stat. 970; Military Construction Authorization Act, 1984, Pub. L. No. 98-115, § 201, 97 Stat. 765; Military Construction Authorization Act, 1981, Pub. L. No. 96-418, § 201, 94 Stat. 1755.

2 Http://www.publications.parliament.uk/pa/cm200304/cmhansrd/ vo040615/wmstext/40615m03.htm.