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UNCW BLA 361 - Reading

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Deportation/exile of the Chagos IslandersUnited States District Court for the District of ColumbiaNo. 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 photoRamp photo ImageSat-1 ImageSat-2IntroductionThis action concerns the U.S. Navy Support Facility on the island of Diego Garcia. Diego Garciais 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 SosaSosa 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 agentswho 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 kbpdf}. ¶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 claimsagainst 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 SosaThe 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, 124S.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 theUnited 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


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UNCW BLA 361 - Reading

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