United States District Court for the District of Columbia
March 30, 2004.
RENÉ SCHNEIDER, et al., Plaintiffs,
HENRY A. KISSINGER, et al., Defendants
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
This lawsuit challenges covert actions allegedly directed by
high-level United States officials in connection with an attempted coup
in Chile in 1970 designed to prevent the election of Dr. Salvadore
Allende as Chile's first Socialist President.*fn1 General René
Schneider, then Commander-in-Chief of the Chilean Army, opposed military
intervention in the electoral process. As a result, the United States
allegedly plotted with Chilean nationals to neutralize him. General
Schneider was shot during a failed kidnaping attempt on October 22, 1970,
and died from his wounds a few days later. Two of General Schneider's
children and his Personal Representative, suing on behalf of his estate,
seek to hold the United States and Henry A. Kissinger, former Assistant
for National Security Affairs to President Richard M. Nixon, responsible
for the General's death.
Pending before the Court are the defendants' motion to dismiss and
renewed motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.*fn2 The plaintiffs oppose these
motions and also move to strike the United States Attorney General's
certification that Dr. Kissinger was acting in his official capacity when
the conduct alleged in the amended complaint took place. For the
following reasons, the Court concludes that this case is non-justiciable
because the plaintiffs' claims present a political question committed to
the Executive and Legislative Branches. In the alternative, the Court
finds that the FTCA requires substitution of the United States for Dr.
Kissinger and that the plaintiffs' allegations are barred by the doctrine
of sovereign immunity. The motions to dismiss will be granted, the motion
to strike will be denied, and the case will be dismissed.
I. BACKGROUND FACTS*fn3
Plaintiffs Rene and Raul Schneider are two of General Schneider's sons.
Plaintiff Jose Pertierra is the Personal Representative of General
Schneider's estate and is suing in that capacity. Defendant Dr. Kissinger
served as National Security Advisor to former President Nixon
from 1969 to 1973.*fn4 The United States Attorney General
certified on November 2, 2001, that Dr. Kissinger was acting "within the
scope of federal office or employment at the time of the incident out of
which the plaintiffs' claims arose" and now seeks to substitute the
United States for Dr. Kissinger as a defendant. Cert. of John Lodge Euler
(attached to Defs.' Mot. I).
As alleged by the plaintiffs, the following events have had a profound
impact on Chile's political, social, and economic environment. On
September 4, 1970, Dr. Allende won a slight plurality of the votes
(36.3%) in Chile's presidential election. Because there was no clear
victor, the Constitution of Chile provided that its Congress, in joint
session, would determine who would become President from the two highest
contenders. The Chilean Congress traditionally had confirmed the
candidate who received the greatest number of popular votes; hence, it
was expected that the Congress would ratify Dr. Allende's election on
October 24, 1970.
Key officials in the United States Government, including former
President Nixon, wanted to prevent Dr. Allende, a self-proclaimed
Marxist, from taking power.*fn5 On September 12,
1970, U.S. Ambassador to Chile Edward Korry advised, "[The] Chilean
military will not, repeat not, move to prevent Dr. Allende's accession,
barring [the] unlikely situation of national chaos and widespread
violence." Compl. II ¶ 18 (internal quotation marks omitted).
President Nixon then met with Dr. Kissinger, Mr. Helms, and Attorney
General John Mitchell on September 15, 1970, and "ordered that the
necessary steps be taken to prevent Dr. Allende from becoming President
of Chile. Particularly, President Nixon instructed the CIA to `play a
direct role in organizing a military coup d'etat in Chile.'" Compl. I
¶ 18. President Nixon stated that "he was `not concerned' about the
`risks involved'" with his decision and allocated $10 million to effect
a military coup. Id.
The efforts to prevent Dr. Allende from assuming office allegedly
proceeded on two tracks.
"Track I" comprised covert political, economic,
and propaganda activities approved by the 40
Committee, a sub-cabinet level body of the
Executive Branch chaired by Defendant Kissinger
whose overriding purpose was to exercise control
over covert operations abroad. The activities were
designed to induce Dr. Allende's opponents in
Chile to prevent his assumption of power, either
through political or military means. "Track II"
activities, in turn, were directed "towards
actively promoting and encouraging the Chilean
military to move against Allende."
Compl. II ¶ 19. The plaintiffs assert that only Dr. Kissinger and
top CIA officials were informed of the second track. See id.
¶ 20. Specifically, the State Department was not informed of it.
In October 1970, Ambassador Korry was authorized to encourage a
military coup and to intensify contacts with Chilean military officers to
assess their potential support. He reported to
Dr. Kissinger that "General Schneider would have to be neutralized,
by displacement if necessary" for any coup to be successful. Id.
¶ 22 (internal quotation marks omitted). Acting on this information,
the CIA contacted and worked with several coup plotters, including
retired Chilean General Roberta Viaux and General Camilo Valenzuela, who
was Commander of the Santiago Garrison. Within the first weeks of
October, the defendants came to regard General Viaux as "the best hope
for carrying out the CIA's Track II mandate." Id. ¶ 28
(internal quotation marks omitted). General Viaux had ties to Patria
y Libertad, a right-wing paramilitary group in Chile. Between
September 4 and October 24, 1970, the CIA provided Patria y
Libertad with $38,000. Id. ¶ 27. Around October 13,
1970, the CIA gave General Viaux $20,000 in cash and promised him a life
insurance policy of $250,000. Id. ¶ 28. In addition, U.S.
Army Attache Paul Wimert delivered to members of General Valenzuela's
faction six tear gas grenades, submachine guns, and ammunition.
Id. ¶¶ 36-37.
On October 14, 1970, the CIA was informed that General Viaux planned to
kidnap General Schneider within 48 hours to effect the coup. The amended
complaint alleges that the defendants "never gave any instruction to
leave General Schneider unharmed" and that "[i]t was foreseeable . . .
that the kidnaping would create a grave risk of death to General
Schneider and consequent harm to his family." Id. ¶ 30. On
October 16, 1970, the CIA ordered its operatives in Chile to "continue
their work of promoting a successful coup in spite of `other policy
guidance' that they may receive from other branches of the U.S.
government." Id. ¶ 33.
After two unsuccessful kidnaping attempts, General Schneider was
fatally injured during a third attempted kidnaping by members of General
Viaux's faction on October 22, 1970. He died from his gunshot wounds
three days later. Id. at ¶ 43. General Viaux, among others,
eventually convicted by a Chilean military court on charges of
kidnaping and conspiring to cause a coup.
II. LEGAL STANDARDS
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the
plaintiffs bear the burden of proving by a preponderance of the evidence
that the Court has subject matter jurisdiction to hear this case.
Jones v. Exec. Office of the President, 167 F. Supp.2d 10, 13
(D.D.C. 2001). In deciding such a motion, the Court must accept as true
all of the factual allegations set forth in the amended complaint;
however, such allegations "`will bear closer scrutiny in resolving a
12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state
a claim." Grand Lodge of the Fraternal Order of Police v.
Ashcroft, 185 F. Supp.2d 9, 13-14 (D.D.C. 2001) (quoting 5A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1350). The Court may consider matters outside the pleadings.
Lipsman v. Sec'y of the Army, No. 02-0151, 2003 U.S. Dist. LEXIS
4882, at *6 (D.D.C. Mar. 31, 2003).
A motion to dismiss for failure to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure tests the legal sufficiency of the
amended complaint. The Court must accept as true all of the plaintiffs'
well-pled factual allegations and draw all reasonable inferences in favor
of the plaintiff; however, the Court does not need to accept as true any
of the plaintiffs' legal conclusions. Alexis v. District of
Columbia, 44 F. Supp.2d 331, 336-37 (D.D.C. 1999). "[An amended]
complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff[s] can prove no set of facts in
support of [their] claim which would entitle [them] to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The plaintiffs seek to hold the United States and Dr. Kissinger liable
for the attempted kidnaping and death of General Schneider under various
U.S. laws and treaties, the "law of nations";*fn6 Chilean law; statutes
and the common law of the District of Columbia; and, in the
alternative, the FTCA. They assert nine claims in their amended
complaint: summary execution; torture; cruel, inhuman, or degrading
treatment; arbitrary detention; wrongful death; assault and battery; two
counts of intentional infliction of emotional distress; and negligent
failure to prevent summary execution, arbitrary detention, cruel,
inhuman, or degrading treatment, torture, wrongful death, and assault and
battery. The defendants move to dismiss, arguing that the political
question doctrine renders non-justiciable all of the plaintiffs' claims;
that sovereign immunity bars the claims against the United States; and
that the amended complaint fails to state a cognizable claim against Dr.
Kissinger, in part because of substitution under the FTCA. The plaintiffs
counter that the political question doctrine is inapplicable to mere
torts claims; that the United States has implicitly waived its sovereign
immunity; and that Dr. Kissinger was not acting within the scope of his
employment when he allegedly committed the torts at issue and is not
entitled to qualified immunity.
A. Political Question Doctrine
The political question doctrine excludes from
judicial review those controversies which revolve
around policy choices and value determinations
constitutionally committed for resolution to the
halls of Congress or the confines of the Executive
Branch. The Judiciary is particularly ill suited
to make such decisions, as "courts are
fundamentally underequipped to formulate national
policies or develop standards for matters not
legal in nature."
Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230
(1986) (quoting United States ex rel Joseph v. Cannon,
642 F.2d 1373, 1379 (D.C. Cir. 1981) (footnote omitted), cert. denied,
455 U.S. 999 (1982)). This is just such a case.
It is difficult to see through the lens of more than 30 years ago, when
world events conspired to cause concern at the highest echelons of the
United States Government that communism would spread across Latin
America if Dr. Allende were elected President of Chile. Plaintiffs argue
that the President of the United States directed his National Security
Advisor and the CIA to assist a coup attempt in Chile to avoid a vote by
Chile's Congress. They further assert that these officials carried out a
covert program in furtherance of the President's directions that
included an unsuccessful attempt to kidnap General Schneider and thereby
caused his death. Both parties reference extended investigations by the
U.S. Congress into this extraordinary activity on the part of the United
States to interfere with the democratic elections of another country.
With the events leading to General Schneider's death given detailed
attention by the Executive and Legislative Branches, this lawsuit now
asks the Judiciary to weigh into this matter and determine whether his
estate and two heirs are entitled to recompense.
The political question doctrine is "primarily a function of the
separation of powers." Baker v. Carr, 369 U.S. 186, 210 (1962).
The Supreme Court has enumerated factors that may render a case
Prominent on the surface of any case held to
involve a political question is found a 
textually demonstrable constitutional commitment
of the issue to a coordinate political department;
or  a lack of judicially discoverable and
manageable standards for resolving it; or  the
impossibility of deciding without an initial
policy determination of a kind clearly for
nonjudicial discretion; or  the impossibility
of a court's undertaking independent resolution
without expressing lack of respect due coordinate
government; or  an unusual need for
unquestioning adherence to a political decision
already made; or  the potentiality of
embarrassment of multifarious pronouncements by
various departments on one question.
Id. at 217. Applying the first four factors to the plaintiffs'
claims, the Court concludes that Baker and its progeny strongly
favor dismissal of this case.*fn7
1. This Lawsuit Raises Policy Questions that Are Textually
Committed to a Coordinate Branch of Government.
The decision to support a coup of the Chilean Government to prevent Dr.
Allende from coming to power, and the means by which the United States
Government sought to effect that goal, implicate policy decisions in the
murky realm of foreign affairs and national security best left to the
political branches. "The conduct of the foreign relations of our
Government is committed by the Constitution to the Executive 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."*fn8
Oetjen v. Cent. Leather Co., 246 U.S. 297
, 302 (1918); see
also Comm. of United States Citizens, 859 F.2d at 933-34 ("[F]oreign
policy decisions are the subject of just such a textual commitment."). In
Baker v. Carr, however, the Supreme Court cautioned that "it is
error to suppose that every case or controversy which touches foreign
relations lies beyond judicial
cognizance." 369 U.S. at 211. Determining whether a particular
foreign affairs context presents a non-justiciable political question
therefore requires a case-by-case inquiry.
The plaintiffs assert that this is a "mere tort" case that does not
raise any political questions. See Pls.' Opp. I at 12-13. In
support, they cite Klinghoffer v. S.N.C. Achille Lauro,
739 F. Supp. 854 (S.D.N.Y. 1990), vacated by 937 F.2d 44 (2d Cir.
1991), in which the Second Circuit held that the political question
doctrine did not bar a lawsuit against the Palestine Liberation
Organization ("PLO") for allegedly hijacking an Italian cruise liner and
killing Leon Klinghoffer, an American passenger.*fn9 The PLO argued that
"issues of its liability for a terrorist attack are foreign policy
questions not properly subject to judicial determination and that a
court's resolution of them would infringe the foreign policy authority
committed to other branches of government." Klinghoffer,
739 F. Supp. at 859. In rejecting that legal position, the Second Circuit
determined that it was "faced with an ordinary tort suit, alleging that
the defendants breached a duty of care owed to the plaintiffs or their
decedents. The department to whom this issue has been `constitutionally
committed' is none other than our own the Judiciary."
KHnghoffer, 937 F.2d at 49.
The plaintiffs' reliance on Klighoffer is misplaced. That case
is readily distinguishable from the situation at hand. First and
foremost, no policy decision by a co-equal branch of the U.S. Government
was implicated in Klinghoffer; the relevant defendant was a
foreign political organization. The plaintiffs here, in contrast, ask
this Court to assess the reasonableness of the Executive Branch's
decision to seek perhaps through violent means a change
makeup of a foreign sovereign. Second, the PLO invoked the
political question doctrine to avoid a ruling by the District Court that,
it argued, would "surely exacerbate the controversy surrounding the PLO's
activities." Id. In response, the Second Circuit noted, "The
fact that the issues before us arise in a politically charged context
does not convert what is essentially an ordinary tort suit into a
non-justiciable political question." Id. The defendants in the
instant action do not rely on the political question doctrine simply to
avoid debate around the world; they base their arguments on the more
legitimate premise that a decision here might entail the Judiciary' s
potential encroachment on the President's foreign policy determinations.
The analysis in Chaser Shipping Corp. v. United States,
649 F. Supp. 736, 739 (S.D.N.Y. 1986), aff'd, 819 F.2d 1129 (2d Cir.
1987), cert. denied, 484 U.S. 1004 (1988), rehrg.
denied, 487 U.S. 1243 (1988), another case from the Second Circuit,
is more applicable to this lawsuit. In Chaser Shipping, the
Second Circuit affirmed the dismissal, on political question grounds, of
tort claims brought by a foreign shipping company against the United
States for the alleged failure to use due care in conducting mining
operations in a Nicaraguan harbor. The United States District Court for
the Southern District of New York concluded:
For the judiciary to monitor the conduct of covert
military operations, whether before or after their
occurrence, would be an exercise of nonjudicial
discretion which Baker counsels the
courts to avoid. Such scrutiny by the judicial
branch would also fail to accord appropriate
respect to a coordinate branch of the Government.
To avoid becoming embroiled in sensitive foreign
policy matters such as this one, the Court
declines to interpose its own will above the will
of the President or the Congress.
Id. at 739 (citations omitted).
The plaintiffs contend that the foreign policy of the United States is
not at issue because "the events complained of do not relate to a
decision regarding the `recognition of foreign
governments,' or a `President's decision to deploy military force
against a foreign government[.]'" Pls.' Opp. I at 13 (citations to the
defendants' brief omitted). According to the plaintiffs, they "do not ask
this Court to `decide that an Allende government would have been better
or worse for the United States `interests.' . . . Rather, Plaintiffs seek
only a vindication of personal rights." Id. This argument begs
the question. The legality or propriety of the defendants' actions in
allegedly supporting the attempted kidnaping and resulting death of
General Schneider i.e., whether such conduct were
reasonable or ultra vires can be ascertained only by an
examination of the genesis of U.S. foreign policy in 1970 and the
President's decisions on how to implement it. For better or worse, the
plaintiffs' claims arise within the context of the United States's
conduct of its foreign relations. Second-guessing the methods by which
the Executive Branch chose to deal with a new Socialist regime in Chile
in the 1970s vis a vis their effect on foreign citizens is not
the proper role of this Court.*fn10
Indeed, the plaintiffs' tort allegations go to the very heart of the
political question doctrine: foreign policy directives from the President
himself. See Compl. I ¶ 18. A government was poised to
assume power in Chile that the President deemed inimical to the interests
of the United States. Whether Executive Branch judgments at that time
were correct or wise is not the issue. The question is whether the
discretion to make such decisions and give directions lies solely within
the political branches of Government or is subject to review by the
Judiciary.*fn11 Foreign affairs do not encompass only "United States
policy in general" toward another country, Pls.' Opp. I at 15
(emphasis added), but also cover discrete choices made by the Executive
and Legislative Branches concerning the full range of relationship issues
between nations, not the least of which are the leadership and
economic/social policies of a fellow country in the western hemisphere.
For these reasons, the first Baker factor militates toward a
finding that this case is barred by the political question doctrine.
2. There Exist No Judicially Discoverable and Manageable
Standards to Determine the Propriety of Executive Actions
Involving Foreign Relations Decisions.
Continuing with their theory that this lawsuit presents "mere torts,"
the plaintiffs argue that clear standards exist for resolving this
matter. Pls.' Opp. I at 12. They claim that "the standards for evaluating
wrongful death are well-established" under D.C. Code § 16-2701, and
that the "Court need not depart from these in managing the instant
action." Id. at 15. Without examining the specific elements of
wrongful death, the surface of the amended complaint reveals that
resolution of this case would require the Court to decide whether Dr.
Kissinger's alleged decision to support the kidnaping of General
Schneider in order to prevent Dr. Allende from gaining control of the
Chilean Government was "wrongful." This alone would call for a
determination of whether it was proper for an Executive Branch official,
without regard to potential adverse consequences, to support covert
actions against an undesirable figure who was set to take power in a
foreign nation. Neither the D.C. Code nor the common law on wrongful
death provides judicially manageable standards with which to make this
Several courts have come to a similar conclusion regarding torts
allegedly committed by U.S. officials against foreigners outside the
United States. See, e.g., Industria Panificadora, S.A. v. United
States, 763 F. Supp. 1154 (D.D.C. 1991), aff'don other
grounds, 957 F.2d 886, 887 (D.C. Cir. 1992); Chaser Shipping
Corp. v. United States, 649 F. Supp. 736 (S.D.N.Y. 1986);
Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983),
aff'd on other grounds, 770 F.2d 202, 206 (D.C. Cir.
1985).*fn12 The District Court in Industria Panificadora held
that it lacked judicially
manageable standards to decide whether the United States was
negligent for failing to leave a sufficient police power in Panama after
the U.S. Armed Forces ousted General Manuel Noriega. 763 F. Supp. at 1161
("[W]hile plaintiffs carefully worded their amended complaint to suggest
a basis in traditional tort concepts of due care and negligence, their
allegations implicate broader political questions that encompass U.S.
foreign policy and military operations."). "Such an inquiry would be
fraught with national security considerations and unmanageable political
and military issues." Id. Similarly, the District Court in
Chaser Shipping "simply [did] not agree with plaintiffs that an
inquiry into the issues of tort liability raised by their complaint would
be a manageable one" because the claims turned on whether the President
and CIA had exercised due care in conducting covert military operations
in Nicaragua. 649 F. Supp. at 738. In Sanchez-Espinoza, the
District Court dismissed on political question grounds claims against the
U.S. Government for allegedly supporting paramilitary activities in an
effort to overthrow the Nicaraguan Government. 568 F. Supp. at 602.
"[T]he questions presented [in that case] require[d] judicial inquiry
into sensitive military matters . . . [such as] covert activities of CIA
operatives in Nicaragua and Honduras[.]" Id. at 600.
Resolving the present lawsuit would compel the Court, at a minimum, to
determine whether actions or omissions by an Executive Branch officer in
the area of foreign relations and
national security were "wrongful" under tort law. To gauge the
reasonableness of these foreign policy decisions, the Court would have to
measure and balance a myriad of thorny foreign and domestic political
considerations, i.e., the magnitude of any threat to the United
States and its democratic allies from the spread of Marxism to Chile. The
Court lacks judicially discoverable and manageable standards to resolve
these inherently political questions. Under the second Baker
factor, this case should be dismissed as non-justiciable.
3. Judicial Resolution Would Require Evaluation of an Initial
Policy Determination of a Kind Clearly For Nonjudicial
The plaintiffs complain that Dr. Kissinger worked with the CIA to
provide material aid to violent coup plotters without regard to the
foreseeable impact on the safety and life of General Schneider. They
allege that Dr. Kissinger breached a duty to give explicit directions
that General Schneider's well-being be protected. However, the Executive
Branch's alleged decision to support the kidnaping of General Schneider,
in the face of a growing leftist regime in Chile, plainly required one or
more initial policy determinations beyond the pale of judicial expertise.
The Supreme Court has emphasized that "the `nuances' of `the foreign
policy of the United States . . . are much more the province of the
Executive Branch and Congress than of this Court." Crosby v. Nat'l
Foreign Trade Council, 530 U.S. 363, 386 (2000) (quoting
Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 196
(1983)). In response, the plaintiffs contend that "the Court is not here
asked to pass judgment on any perceived value or danger of the Allende
government to United States interests and need not make any policy
determination[.]" Pls.' Opp. I at 15. While the plaintiffs are correct
that the Court might be able to avoid evaluating the merits of a
potential Allende Government in 1970, it would nonetheless be forced to
pass judgment on the means used by the United States to keep that
government from taking power. In so doing, the Court
would naturally have to consider whether preventing Dr. Allende
from becoming President of Chile was worth supporting a rebel military
faction that would likely commit human rights violations. The Hinchey
Report to the Congress, quoted by the plaintiffs, illustrates some of the
foreign policy implications:
There is no doubt that some CIA contacts were
actively engaged in committing and covering up
serious human rights abuses.
As a result of lessons learned in Chile, Central
America and elsewhere, the CIA now carefully
reviews all contacts for potential involvement in
human rights abuses and makes a deliberate
decision balancing the nature and severity of the
human rights abuses against the potential
intelligence value of continuing the
relationship. These standards, established in
the mid-1990s, would likely have altered the
amount of contact we had with perpetrators of
human rights violators in Chile had they been in
effect at that time.
Report on CIA Activities in Chile, September 18, 2000, available
at http://www.foia.state.gov/Reports/HincheyReport.asp)) (emphasis
added). Courts are decidedly ill-equipped to consider such questions as
they are not privy to all relevant intelligence information, and they
have no appropriate legal standard to determine the gravity of the threat
to the United States that might be caused by a (hosfile) foreign
government or the likelihood that certain covert actions would ameliorate
or exacerbate that threat.
Ruling on the propriety of relying on certain Chilean dissidents to
kidnap General Schneider would require an initial policy determination of
a kind that does not lie within judicial discretion. This third
Baker factor therefore counsels against the Court hearing this
4. The Court Could Not Proceed Without Expressing A Lack of
Respect to Coordinate Branches of Government.
It would be virtually impossible for the Court to resolve this case
without either condemning officials of the Executive Branch for their
actions or undermining the conclusions
reached by Congress in the Hinchey Report. A court should refrain
from entertaining a suit if it would be unable to do so without
expressing a lack of respect due to its co-equal Branches of Government.
See Baker v. Carr, 369 U.S. at 217; Chaser,
649 F. Supp. at 739; Sanchez-Espinoza, 568 F. Supp. at 600. In this
circumstance, the Executive Branch participated in covert activities that
the Congress later investigated. It is not realistically possible for the
Judiciary to add its voice or its opinion without contradiction to either
or both of these other Branches. Accordingly, the fourth Baker
factor also leans toward dismissal.
Both defendants claim immunity as an additional basis for dismissal. As
an initial matter, the Court agrees with the U.S. Attorney General that
Dr. Kissinger was acting within the scope of his employment for purposes
of this lawsuit; accordingly, the United States will be substituted for
him as the sole defendant except for claims under the Torture Victim
Protection Act ("TVPA"), 28 U.S.C. § 1350 note. These TVPA claims are
deficient, however, and will be dismissed for failure to state a claim
upon which relief can be granted. The remaining case against the United
States will be dismissed based on its sovereign immunity.
1. The United States Was Properly Substituted for Dr. Kissinger
under the Westfall Act.
The Federal Employees Liability Reform and Tort Compensation Act of
1988 ("Westfall Act"), Pub.L. No. 100-694, 102 Stat. 4563 (codified in
part at 28 U.S.C. § 2671, 2674, 2679), confers immunity on federal
officials "by making an FTCA action against the Government
the exclusive remedy for torts committed by [such] employees in the
scope of their employment." United States v. Smith,
499 U.S. 160
, 163 (1991); see also 28 U.S.C. § 2679(b)(1).
When a federal employee is sued for a wrongful or
negligent act, the [Westfall Act] empowers the
Attorney General to certify that the employee "was
acting within the scope of his office or
employment at the time of the incident out of
which the claim arose. . . ."
28 U.S.C. § 2679(d)(1). Upon certification, the employee is
dismissed from the action and the United States is
substituted as defendant.
Gutierrez de Martinez v. Lamagno, 515 U.S. 417
, 419 (1995).
This certification is not conclusive and a federal court examines the
issue independently. Id. at 434. In general, the plaintiffs bear
the burden of producing evidence that a defendant was acting outside the
scope of his employment.*fn14
SeeKimbro v. Velten,
30 F.3d 1501, 1509 (D.C. Cir. 1994); Wrightv. United States, No.
95-0274, 1996 U.S. Dist. LEXIS 21781, at *8 (D.D.C. Feb. 8, 1996).
The plaintiffs move to strike the U.S. Attorney General's certification
that Dr. Kissinger was acting within the scope of his employment. They
assert that, "because Defendants' conduct constitutes a clear violation
of peremptory norms of international law, such that can never be within
the scope of employment, the certification by Defendant United States is
improper." Pls.' Opp. I at 5. This statement, however, is based on an
erroneous interpretation of the term "scope of employment."
The scope of employment of a federal employee is governed by state law.
See Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995)
(citing Kimbro, 30 F.3d at 1506). On this issue, the District of
Columbia looks to the Restatement (Second) of Agency, which provides:
[c]onduct of a servant is within the scope of
employment if, but only if: (a) it is of the kind
he is employed to perform; (b) it occurs
substantially within the authorized time and space
limits; (c) it is actuated, at least in part, by a
purpose to serve the master, and (d) if force is
intentionally used by the servant against another,
the use of force is not unexpectable by the
Restatement (Second) of Agency § 228(1). Conduct must be "of the
same general nature as that authorized" or "incidental to the conduct
authorized" to be within the scope of employment. Id. § 229.
For conduct to be "incidental" it must be foreseeable, meaning that it is
a "direct outgrowth" of the performance of an employee's instructions or
job assignment. See Haddon, 68 F.3d at 1424.
The plaintiffs' theory that a violation of international law always
falls outside the scope of a federal official's employment misconstrues
"the scope" of this term. It is well settled that an employee is capable
of committing a variety of illegal or tortious acts for which his
employer may be held liable, even though the employer did not hire him
for that purpose. This is, after all, the predicate of respondeat
superior liability. See, e.g., Weinberg v. Johnson,
518 A.2d 985, 988 (B.C. 1986) ("The doctrine of respondeat superior
is a doctrine of vicarious liability which imposes liability on employers
for the torts committed by their employees within the scope of their
employment.").*fn15 Defining an employee's scope of employment is not a
judgment about whether alleged conduct is deleterious or actionable;
rather, this procedure merely determines who may be held liable
for that conduct, an employee or his boss.*fn16
The Court finds that Dr. Kissinger was acting within the scope of his
employment as National Security Advisor to President Nixon when he
allegedly conspired to kidnap General Schneider. The establishment of a
Socialist Government in Chile would have had a substantive impact on U.S.
foreign policy and would naturally implicate national security concerns
for which Dr. Kissinger had some responsibility. Moreover, there is no
allegation by the plaintiffs that Dr. Kissinger undertook these
activities solely, if at all, for his own personal benefit. Id.
at 990 ("The tort must be actuated, at least in part, by a purpose to
further the master's business and not be unexpected in view of the
servant's duties."). Indeed, the plaintiffs themselves initially averred
that "President Nixon met with Defendant Kissinger . . . and
ordered that the necessary steps be taken to prevent Dr. Allende
from becoming President of Chile."*fn17 Compl. I ¶ 18 (emphasis
added). The plaintiffs further stated in their first complaint that
"President Nixon instructed the CIA to `play a direct role in organizing
a military coup d'etat in Chile' and to do quickly whatever could be done
to prevent Dr. Allende from being seated." Id. Clearly, then,
the conduct attributed to Dr. Kissinger occurred during the performance
of his job function and, as conceded, at the express direction of the
Ordinarily, a ruling that Dr. Kissinger was acting within the scope of
his employment would result in his dismissal from the case in favor of
the United States. Immunity under the Westfall Act, however, does not
apply to a civil action against a federal employee "which is brought for
a violation of a statute of the United States under which such action
against an individual is
otherwise authorized." 28 U.S.C. § 2679(b)(2)(B). The
plaintiffs argue that their claims under the Alien Tort Claims Act
("ATCA"), 28 U.S.C. § 1350, international law, and the TVPA fall
within this exception.
Pursuant to the ATCA, "[t]he district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the United States."
Id. The plaintiffs assert that this statute establishes "both a
private cause of action and a federal forum where aliens may seek redress
for violations of international law."*fn18 Pls.' Opp. I at 24. The
defendants counter that the ATCA creates no substantive rights or duties
that can be "violated" for purposes of the Westfall Act; rather, "§
1350 contemplates that the district courts can entertain an action for
the violation of substantive rights conferred elsewhere, namely by the
law of nations or by a treaty of the United States." Defs.' Mot. I at 25
(citing Alvarez-Machain v. United States, 266 F.3d 1045, 1053-54
(9th Cir. 2001)).
In Alvarez-Machain, a Mexican doctor sued individual agents of
the United States Drug Enforcement Agency ("DEA"), among others, for "(1)
kidnaping, (2) torture, (3) cruel and inhuman and degrading treatment or
punishment, (4) arbitrary detention, (5) assault and battery, (6) false
imprisonment, (7) intentional infliction of emotional distress, (8) false
arrest, (9) negligent employment, (10) negligent infliction of emotional
distress, and (11) various constitutional torts" after he was abducted
from Mexico. to stand trial in the United States. 266 F.3d at 1049. A
three-judge panel on the Ninth Circuit affirmed the District Court's
an action under the ATCA was not exempt from the
exclusive remedy provision of the Liability Reform
Act. [The District Court] reasoned that "it is
international law, not the ATCA," that gives
individuals fundamental rights. Therefore, a claim
under the ATCA is based on a violation of
international law, not of the ATCA itself.
Id. at 1053 (citing United States v. Smith,
499 U.S. 160
This Court agrees with the Ninth
Circuit's logic and concludes that the ATCA itself cannot be violated
for purposes of § 2679(b)(2)(B).
The plaintiffs also fail to defeat substitution on the grounds that
"violations of international law `arise under' the laws of the United
States for purposes of jurisdiction under 28 U.S.C. § 1331."
Pls.'Opp. I at 25. The Westfall Act explicitly makes an exception for "a
violation of a statute of the United States[,]" not federal common law or
the law of nations. 28 U.S.C. § 2679(b)(2)(B). Even if "[s]ection
1331 provides an independent basis for subject-matter jurisdiction over
all claims alleging violations of international law, relying on the
settled proposition that federal common law incorporates international
law[,]" Pls.' Opp. I at 25-26, it cannot possibly be said that the
plaintiffs bring suit for a violation of § 1331, which merely
provides federal question jurisdiction and not a cause of action.
In contrast, a violation of the TVPA arguably fulfills the requirements
of § 2679(b)(2)(B). See Defs.' Mot. I at 23. Even so, this
statute provides no relief against Dr. Kissinger. The TVPA imposes civil
liability only on an individual acting "under actual or apparent
authority, or color of law, of any foreign nation." TVPA §
2(a) (emphasis added). In
carrying out the direct orders of the President of the United
States, see Compl. I ¶ 18, Dr. Kissinger was most assuredly
acting pursuant to U.S. law, if any, despite the fact that his alleged
foreign co-conspirators may have been acting under color of Chilean law.
In addition, the TVPA claims appear to be barred by Dr. Kissinger's
qualified immunity from suit. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) ("[G]overnment officials performing discretionary
functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known."). Since the TVPA was passed almost twenty-two years after the
events in question, its proscriptions could not have been an accepted
basis for personal liability in 1970. Given this result, the Court does
not need to determine whether Dr. Kissinger is entitled to absolute
immunity as a senior White House aide "entrusted with discretionary
authority in such sensitive areas as national security or foreign
policy," an argument advanced by the defendants.*fn20 Id. at
2. The Doctrine of Sovereign Immunity Bars Claims against the
"It is well established that `the United States, as sovereign, is
immune from suit save as it consents to be sued . . ., and the terms of
its consent to be sued in any court define that court's jurisdiction to
entertain the suit.'" In re Sealed Case No. 99-3091,
192 F.3d 995
, 999 (D.C. Cir. 1999) (quoting United States v. Sherwood,
312 U.S. 584, 586 (1941)). Any waiver of sovereign
immunity must be unequivocally expressed and "will be strictly
construed, in terms of its scope, in favor of the sovereign." Lane v.
Peña, 518 U.S. 187, 192 (1996); see also Floyd v.
District of Columbia, 129 F.3d 152, 156 (D.C. Cir. 1997) ("[W]aivers
of sovereign immunity must be unequivocally expressed in statutory text;
we cannot imply a waiver of sovereign immunity[.]").
Based on the allegations in their first complaint, the plaintiffs
assert that the United States does not enjoy sovereign immunity from this
lawsuit because "[t]he acts complained of are violations of peremptory
norms of international law as to which no person or state may claim
immunity; and . . . principles of comity demand the waiver of sovereign
immunity of the United States under those same limited exceptions"
provided in the Foreign Sovereign Immunities Act ("FSIA"),
28 U.S.C. § 1330, 1602-11, against other nations. Pls.' Opp. I at 39. These
arguments misunderstand the nature of sovereign immunity. "[A]n implied
waiver [of sovereign immunity] depends upon the . . . government's having
at some point indicated its amenability to suit." Princz v. Fed.
Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994). Princz
held that "the violation of jus cogens norms by the Third
Reich [did not] constitute an implied waiver of [Germany's] sovereign
immunity under the FSIA."*fn21 Id.; see also Hwang Geum Joo v.
Japan, 332 F.3d 679, 680 (D.C. Cir. 2003) ("We reject the
appellants' argument that violation of a jus cogens norm
constitutes a waiver of sovereign immunity."). Thus, not only does
precedent instruct that a waiver of sovereign immunity must be explicit
but it also teaches that such immunity cannot be implied unless a
government has "indicated its amenability to suit" even for the most
heinous of crimes against international law. See Princz, 26 F.3d
at 1168 (atrocities during the Holocaust); Hwang Geum Joo,
332 F.3d at 680 (sex slaves for Japanese soldiers). The initial
complaint while alleging violations of the law of nations
therefore provides no grounds on which the Court may find that the United
States has consented to be sued here.*fn22
The amended complaint added claims against the United States under the
FTCA, which "grants federal district courts jurisdiction over claims
arising from certain torts committed by federal employees in the scope of
their employment, and waives the government's sovereign immunity from
such claims." Shan v. HUD, 236 F.3d 756, 759 (D.C. Cir. 2001)
(citing 28 U.S.C. § 1346(b), 2674). Prior to filing suit under the
FTCA, however, a putative claimant must exhaust an administrative
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or
employment, unless the claimant shall have first
presented the claim to the appropriate Federal
agency and his claim shall have been finally
denied by the agency in writing and sent by
certified or registered mail. The failure of an
agency to make final disposition of a claim within
six months after it is filed shall, at the option
of the claimant anytime thereafter, be deemed a
final denial of the claim for purposes of this
28 U.S.C. § 2675(a); see also McNeil v. United States,
508 U.S. 106, 113 (1993) ("The FTCA bars claimants from bringing suit in
federal court until they have exhausted their administrative remedies.").
According to the initial complaint, "[a]s to . . . any claims for which
Plaintiffs are required to exhaust administrative remedies prior to suit,
Plaintiffs have made the appropriate
administrative filings, and will amend this complaint when those
are resolved." Compl. I ¶ 3. The amended complaint includes an eighth
claim for relief under the FTCA, described as "[n]egligent failure to
prevent summary execution, arbitrary detention, cruel, inhuman or
degrading treatment, torture, wrongful death and assault and battery[,]"
as well as an additional count for intentional infliction of emotional
distress. Compl. II at 22-23. The plaintiffs assert that their FTCA
claims "were presented to the Department of State and Central
Intelligence Agency" and that they "have exhausted administrative
remedies[.]" Id. ¶ 9; see also Pls.' Opp. II at 3
("Plaintiffs waited six months, as required by § 2675(a), for formal
disposition of these claims before filing the Amended Complaint that
includes claims based upon the FTCA."). The plaintiffs argue that
McNeil is inapplicable because, unlike the plaintiff in that
case, their initial complaint was not based upon FTCA jurisdiction. Pls.'
Opp. II at 4.
The question presented is not, as the plaintiffs suggest, whether the
initial complaint was explicitly based on FTCA jurisdiction but whether
that pleading advanced claims against the United States for money damages
for injury "caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment. . . ." 28 U.S.C. § 2675(a). The initial complaint sued
the United States for damages based on orders allegedly given by former
President Nixon to prevent Dr. Allende from serving as President in
Chile.*fn23 See Compl. I ¶ 18. While the former President
is not a named defendant,*fn24 the basis for this
lawsuit, as initially pled, lay with his directions to Dr.
Kissinger and Mr. Helms as the predicate wrongful acts.*fn25 Therefore,
the initial complaint met the definition of the FTCA for "a claim against
the United States" under § 2675(a); it was necessary for the
plaintiffs to complete the administrative process before coming to court.
See McNeil, 508 U.S. at 113.
"Allowing claimants generally to bring suit under the FTCA before
exhausting their administrative remedies and to cure the jurisdictional
defect by filing an amended complaint would render the exhaustion
requirement meaningless and impose an unnecessary burden on the judicial
system." Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir.
1999).*fn26 The United States is immune from suit except to the extent
i.e., the exact manner in which it consents. Any
waiver of sovereign immunity expressed in the FTCA is unavailable to the
plaintiffs in this case.*fn27
The plaintiffs' claims present a non-justiciable political question on
foreign policy decisions undertaken by the Executive Branch in 1970. The
plaintiffs' remedy, if any, must be found in the Congress. In the
alternative, the Court finds that Dr. Kissinger was properly certified as
acting within the scope of his employment vis-a-vis the relevant
events. The United States will be substituted for him as the sole
defendant. With this substitution, the amended complaint is barred by the
doctrine of sovereign immunity. Both of the defendants' motions to
dismiss will be granted. A separate order accompanies this memorandum
For the reasons stated in the memorandum opinion that accompanies this
order, it is hereby
ORDERED that the defendants' two motions to dismiss are
GRANTED. It is
FURTHER ORDERED that the plaintiffs' motion to strike is
DENIED. The United States is substituted for Defendant Henry A.
Kissinger. It is
FURTHER ORDERED that this case is DISMISSED. It is
FURTHER ORDERED that this is a final appealable order.
See FED. R. APP. P. 4(a).