Deportation exile of the Chagos Islanders United States District Court for the District of Columbia No 1 01 CV 02629 RMU Olivier Bancoult et al Plaintiffs v Robert S McNamara et al Defendants Defendants Response to Plaintiffs Supplemental Memorandum Addressing the Impact of the Supreme Court s Decision in Sosa v Alvarez Machain p 1 Pursuant to this Court s Order dated October 19 2004 Defendants submit this Response to Plaintiffs Supplemental Memorandum addressing the impact on this litigation of the Supreme Court s recent decision in Sosa v Alvarez Machain 124 S Ct 2739 2004 Sosa 785 kb pdf Formatting and linking in progress CJHjr World map Chagos map 1 Chagos map 2 Diego map 1 Diego map 2 Space photo Aerial photo 1 Aerial photo 2 Runway photo Ramp photo ImageSat 1 ImageSat 2 Introduction This action concerns the U S Navy Support Facility on the island of Diego Garcia Diego Garcia is a part of the Chagos Archipelago which in turn comprises the British Indian Ocean Territory an Overseas Territory of the United Kingdom Alleging that the Chagos Archipelago had an indigenous population the Chagossians which was displaced to make way for the base Plaintiffs brought this action against the United States and several current or former Federal officers Plaintiffs claim that Defendants acting in concert with the British Government committed various violations of customary international law Plaintiffs demand an award of damages as well as injunctive and declaratory relief 1 Facts and Lower Court Proceedings in Sosa Sosa arose out of the abduction of Humberto Alvarez Machain Alvarez a Mexican national who had been indicted by a Federal grand jury for the kidnapping and murder of an agent of the Drug Enforcement Agency DEA on assignment in Mexico At the behest of DEA officials Alvarez was abducted in Mexico by several Mexican citizens and flown by private plane to the United States where he was turned over to Federal law enforcement personnel The case against Alvarez eventually proceeded to trial at which the district court granted a defense motion for a judgment of acquittal p 2 After returning to Mexico Alvarez commenced an action against the United States under the Federal Tort Claims Act FTCA 28 U S C 1346 b 2671 et seq Alleging jurisdiction under the Alien Tort Statute ATS 28 U S C 1350 Alvarez also sought damages from the DEA agents who planned and approved his abduction as well as from Francisco Sosa one of the Mexican citizens who carried it out After substituting the United States for the defendant DEA agents pursuant to 28 U S C 2679 d 1 2 the district court dismissed all the claims against the United States under the FTCA With respect to the ATS claim against Sosa however the district court granted Alvarez summary judgment and awarded him 25 000 in damages Both Alvarez and Sosa appealed and a three judge panel of the Ninth Circuit affirmed in part and reversed in part See Alvarez Machain v United States 266 F 3d 1045 9th Cir 2001 64 kb pdf On rehearing en banc a closely divided court of appeals reached substantially the same conclusions as had the panel See Alvarez Machain v United States 331 F 3d 604 9th Cir 2003 en banc Affirming the award of damages against Sosa it concluded that Alvarez s claim for arbitrary detention was actionable under the ATS Id at 631 The court also affirmed the substitution of the United States as the sole defendant with respect to Alvarez s ATS claims against the DEA agents Id at 631 32 Finally the court reversed the dismissal of the claims against the United States ruling that the FTCA s foreign country exception 28 U S C 2680 k was inapplicable because the wrongful conduct the planning and approval of Alvarez s abduction took place within the United States Id at 638 39 p 3 The Supreme Court s Decision in Sosa The Supreme Court decided two issues in Sosa 1 whether Alvarez s allegations that DEA instigated his abduction from Mexico supported a claim for damages against the United States under the FTCA and 2 whether he could recover damages from Sosa under the ATS Sosa 124 S Ct at 2746 Reversing the court of appeals judgment on both points the Supreme Court held that Alvarez was entitled to recover damages under neither of these statutes Ibid With regard to the first issue the Supreme Court repudiated the so called headquarters doctrine under which the Ninth Circuit and other courts of appeals had held that the FTCA s foreign country exception was inapplicable to suits for wrongful conduct which occurs within the United States but has its operative effect in another country See 124 S Ct at 2748 n 2 citing Sami v United States 617 F 2d 755 761 D C Cir 1979 Cominotto v United States 802 F 2d 1127 1130 9th Cir 1986 Couzado v United States 105 F 3d 1389 1396 11th Cir 1997 30 kb txt 36 kb pdf In concluding that the headquarters doctrine should have no part in applying the foreign country exception 124 S Ct at 2754 the Supreme Court flatly held that 28 U S C 2680 k bars all claims based on any injury suffered in a foreign country regardless of where the tortious act or omission occurred Ibid Turning to the second issue the Supreme Court held that Alvarez had no right to an award of damages against Sosa under the ATS Noting that the statute originally was enacted as part of the Judiciary Act of 1789 ch 20 9 b 1 Stat 79 the Court specifically rejected as implausible Alvarez s assertion that the ATS was intended not simply as a jurisdictional grant but as authority for the creation of a new cause of action for torts in violation of international law Sosa 124 S Ct at 2755 In reaching this conclusion the Court relied on the original language of the statute which gave the district courts cognizance p 4 of certain causes of action and bespoke a grant of jurisdiction not power to mold substantive law Ibid However the Supreme Court also rejected the notion that the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing the adoption of causes of action 124 S Ct at 2755 In so concluding the Court emphasized the statute s relation to other legislation passed during the First Congress to criminalize three categories of offenses against the law of nations offenses which also had been made crimes under English law See id at 2756 citing 4 W Blackstone Commentaries on the Laws of England 68 1769 id at 2759 T he First Congress was attentive enough to the law of nations to recognize certain offenses expressly as criminal
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