Assertion of Final Order

Plaintiffs appeal from the final judgment of the United States District Court of the District of Columbia in Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004). The Court specifically ordered that the decision “is a final appealable order.” Id. at 270.

Statement of Jurisdiction

The District Court below had subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1350 and 1367. This Court has jurisdiction to hear the present case under 28 U.S.C. §§ 1291 and 1294. 28 U.S.C. § 1294 directs that appeals shall be taken from a district court of the United States to the court of appeals for the circuit embracing the district. Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, Plaintiffs had sixty days from the date of the final order to file a notice of appeal. The United States District Court for the District of Columbia issued its final judgment in Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004) on March 30, 2004. Plaintiffs filed a timely notice of appeal on May 24, 2004, fifty-five days after the final order in the District Court.

Statement of Issues Presented for Review

1. Whether the District Court erred when, in granting a motion to dismiss for failure to state a claim and for want of jurisdiction, it went beyond the allegations of the Complaint, failed to construe the Complaint favorably to Plaintiffs, and drew factual conclusions never subjected to discovery or to any test of adversary inquiry.

2. Whether the District Court erred in finding that Plaintiffs’ claims, which do not challenge United States policy, but concern only the wrongfulness of a criminal homicide and kidnapping allegedly planned and directed by the Defendant, are rendered nonjusticiable by the political question doctrine.

3. Whether the District Court improperly substituted the United States for Defendant Kissinger pursuant to the Westfall Act, without holding the hearing that the law requires, and under a mistaken view of the Act’s intended reach.

4. Whether the District Court erred when it found that Defendant Kissinger could not be held liable under the Torture Victims Protective Act, without an adversarial hearing or any discovery, when the well-pleaded facts establish a basis for liability under that Act.

5. Whether the United States is immune from suit when it commits violations of jus cogens norms. {p.2}

Statement of the Case

This case is brought by the family of Chilean General René Schneider, Commander in Chief of the Chilean armed forces, who was murdered on October 22, 1970 by agents of the Chilean government acting with the culpable complicity of Defendant Henry Kissinger. ¶

Plaintiffs’ Complaint is based almost entirely on United States government documents, declassified pursuant to a declassification review directed by the Executive Branch in February of 1999. ¶

The United States District Court for the District of Columbia dismissed the Complaint without permitting any discovery and based on disputed factual premises and erroneous conclusions of law.

Parties filed dispositive motions as follows. ¶

On September 10, 2001, Plaintiffs René Schneider, Raúl Schneider and José Pertierra (hereinafter collectively referred to as “Plaintiffs”) filed a Complaint alleging Summary Execution; Torture; Cruel, Inhuman, or Degrading Treatment; Arbitrary Detention, Wrongful Death, Assault and Battery, and Intentional Infliction of Emotional Distress in the United States District Court for the District of Columbia against Defendants Henry Alfred Kissinger, Richard McGarrah Helms and the United States of America (hereinafter collectively referred to as “Defendants”). ¶

On November 9, 2001, Defendants submitted a Motion to Dismiss Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and Certification by the Attorney General determining that Defendants Kissinger and Helms were acting within the scope of office or employment at the time of the incidents out of which Plaintiffs’ claims arose, and that the United States Government would be substituted as the Defendant pursuant to 28 U.S.C. § 2679(d)(1) (2004).

Plaintiffs attempted on several occasions to begin the discovery process. The parties met on December 6, 2001 to discuss discovery, but were unable to come to an agreement. ¶

On July 3, 2002, Plaintiffs filed a Motion for a Court Order Pursuant to 36 C.F.R. § 1275.34 {July 1 2002: 2kb.txt, 35kb.pdf; current rule: 2kb.txt, 28kb.pdf} (2004) to obtain access to the “Kissinger Transcripts” located at the National Archives and Records Administration. ¶

The {p.3} District Court denied this motion on August 30, 2002. ¶

To date, Plaintiffs have had no opportunity to conduct discovery.

Defendant Helms passed away on October 22, 2002 and was subsequently removed from the Complaint. ¶

On November 12, 2002, Plaintiffs filed a First Amended Complaint, which added a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346 (1997) (“FTCA”). ¶

Defendants filed a Renewed Motion to Dismiss on December 12, 2002.

On March 30, 2004, in a memorandum opinion, the Honorable Rosemary M. Collyer granted Defendants’ Motion to Dismiss Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). ¶

On May 24, 2004, Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the District of Columbia Circuit.

Statement of the Facts

On September 4, 1970, Dr. Salvador Allende received a slight plurality of the votes (36.3%) in Chile’s presidential election. (Am. Compl. ¶ 16; App. at 167.) In the absence of a candidate with a majority of the votes, the Chilean Constitution provided that the Chilean Congress would select the next president among the first and second contenders. Id. Because the Congress traditionally confirmed the candidate with the highest popular vote, it was anticipated that on October 24, 1970, the Chilean Congress would ratify the election to make Dr. Allende Chile’s first Socialist president. Id.

On September 8, 1970, Defendant Kissinger asked the U.S. Embassy in Chile to analyze the ¶

(Am. Compl. ¶ 17; App. at 167.) (internal quotation marks omitted.) ¶

Assessing the situation from Chile, U.S. Ambassador to Chile Edward Korry responded that the Chilean military was unlikely to obstruct Dr. Allende’s accession to power. (Am. Compl. ¶ 18; App. at 167-68.) {p.4}

On September 15, 1970, President Richard Nixon met with Defendant Kissinger and other United States officials and instructed that necessary steps be taken to prevent Dr. Allende from becoming President of Chile. (Compl. ¶ 18; App. at 7-8). ¶

Nixon told the CIA “to play a direct role in organizing a military coup d’etat in Chile.” Id.

In an effort to prevent Dr. Allende from assuming office, Defendant Kissinger proceeded on two tracks. (Am. Compl. ¶ 19; App. at 168.) ¶

Track I was approved by the 40 Committee and included covert political, economic, and propaganda activities. Id. ¶

What the 40 Committee and the Department of State did not know was that there existed a Track II, which was organized and operated outside the normal procedures for covert operations. (Am. Compl. ¶ 20; App. at 168.) ¶

Defendant Kissinger issued orders directly to the CIA, which were relayed to and carried out by operatives in Santiago, all the while keeping key government officials in the dark. Id.

On September 21, 1970, Ambassador Korry reported to Defendant Kissinger that ¶

in order to effect a coup. (Am. Compl. ¶ 22; App. at 168.) (internal quotation marks omitted.)

Under orders and supervision of Defendant Kissinger and former Director of the CIA Richard Helms 1 , the CIA established contacts with groups of coup plotters, including retired General Roberto Viaux and General Camilo Valenzuela, Commander of the Santiago Garrison. (Compl. ¶ 25; App. at 9.) The groups emphasized that any successful coup would require the elimination of General Schneider, who strongly believed that the Constitution required that the Army refrain from intervening in the constitutional process. (Am. Compl. ¶ 25; App. at 169.)

As late as October 13, 1970, the CIA gave General Viaux $20,000 and promised him a life insurance policy of $250, 000. (Am. Compl. ¶ 28; App. at 170.) ¶

On October 15, 1970, Defendant Kissinger gave specific instructions to the CIA to ¶

(Compl. ¶ 31; App. at 10.) ¶

Based on their conversation with Defendant Kissinger, CIA officials ordered its operatives in Chile to continue promoting a coup regardless of “other policy guidance” they may receive from other branches of the U.S. government. (Am. Compl. ¶ 33; App. at 171.) (internal quotation marks omitted). ¶

Emphasizing the need for secrecy, Defendant Kissinger stated in an October 15, 1970 cable that, ¶

(Am. Compl. ¶¶ 32-33; App. at 171.) (internal quotation marks omitted.)

On October 17, 1970, members of Valenzuela’s group informed the CIA of their willingness to sponsor a coup and their plan to kidnap General Schneider. (Am. Compl. ¶ 35; App. at 172.) In order to complete the task, they requested ¶

Id.

On October 18, 1970, six tear gas grenades were delivered to members of the Valenzuela group. (Am. Compl. ¶ 36; App. at 72). The following day, submachine-guns and ammunition were sent to members of the Valenzuela faction. (Am. Compl. ¶ 37; App. at 172.)

On October 19, 1970, the Valenzuela and Viaux groups, equipped with the tear gas grenades provided by the CIA, made a failed attempt to kidnap General Schneider. (Am. Compl. ¶ 38; App. at 172.)

On October 20, 1970, the CIA made payments of $50,000 each to General Valenzuela and his chief associates on the condition that the Valenzuela group attempt another kidnapping. (Am. Compl. ¶ 39; App. at 172-73.) ¶

The groups made a third attempt to kidnap General Schneider, but failed. Id.

At 2 a.m., October 22, 1970, just hours before General Schneider was fatally shot, U.S. Army Attache Paul Wimert delivered three submachine guns with ammunition to a member of the {p.6} Valenzuela group. (Am. Compl. ¶ 40; App. at 173.) ¶

At or about 8 a.m. that day, an armed group finally succeeded in “neutralizing” General Schneider by intercepting his car and shooting him. Id. ¶

That day, the CIA Santiago office reported that the assailants who had shot General Schneider used the same kind of weapon delivered several hours earlier to a member of the Valenzuela group. Id. ¶

The report acknowledged that the CIA Santiago office “know[s] that General Valenzuela was involved,” and is “certain” that numerous other associates were involved. Id. (internal quotation marks omitted.)

According to the verdict of the Chilean military courts, both the Viaux and Valenzuela groups were involved in the death of General Schneider. (Am. Compl. ¶ 41; App. at 173.) A Chilean military court convicted General Viaux of kidnapping and conspiracy to cause a coup and General Valenzuela of conspiracy to cause a coup. Id. ¶

Commenting on the attack on General Schneider, the CIA stated, ¶

(Am. Compl. ¶ 42; App. at 173.)

Suffering, and in great pain, General Schneider remained alive in a military hospital in Santiago for three days. General Schneider died from his gun shot wounds on October 25, 1970. (Am. Compl. ¶ 43; App. at 173-74.)

After the Schneider killing, efforts were made to obtain “hush money” for imprisoned members of the Viaux group before the coup plotters could implicate the CIA. (Am. Compl. ¶ 44; App. at 174.)

Following the assassination, CIA operatives in Santiago retrieved the $50,000 payments that were made to General Valenzuela and his associates. (Am. Compl. ¶ 45; App. at 174.) ¶

Wimert also retrieved the guns with the serial numbers filed off, the ammunition, the tear gas, and the gas masks and disposed of them by dumping them into the ocean. Id. {p.7}

Summary of the Argument

The District of Columbia Circuit has repeatedly emphasized the importance of adhering to the Federal Rules of Civil Procedure concerning motions to dismiss and motions for summary judgment. ¶

In ruling on Defendants’ Motion to Dismiss in Schneider v. Kissinger, 310 F. Supp. 2d 251 (2004), the District Court allowed the Defendant’s allegations concerning the historical and political context of the claims to affect its judgment and failed to follow the standards established in this Circuit. ¶

Plaintiffs respectfully request that this Court reverse the District Court’s ruling so that Plaintiffs may be afforded the procedural rights and safeguards to which they are entitled.

In ruling on Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the District Court was required to draw all reasonable inferences in favor of Plaintiffs. Instead the District Court improperly drew inferences in favor of Defendants. For example, the District Court was able to find that Plaintiffs’ claims were nonjusticiable only by failing to draw all inferences in Plaintiffs’ favor.

As to Defendants’ 12(b)(6) motion, the District Court converted this motion into one for summary judgment by relying on facts outside of the Complaint, while denying Plaintiffs the ability to challenge these facts through the requisite discovery and evidentiary hearing. The District Court’s failure to follow the standard rules of procedure had a detrimental effect on Plaintiffs’ claims.

The District Court also committed several errors of law. ¶

First, the District Court, influenced by Defendants’ allegations of fact, found that the United States was properly substituted for Defendant Kissinger pursuant to the Westfall Act. ¶

Second, the District Court erroneously held that Defendant Kissinger could not be held liable under the Torture Victim Protection Act (“TVPA”) by misconstruing the language and purpose of the Act and extending the doctrine of qualified immunity beyond its recognized scope.

Finally, Plaintiffs request in good faith that this Court revisit and reverse the holding that sovereign immunity bars adjudication of jus cogens violations. ¶

In permitting the United States {p.8} government to commit the most egregious violations of international law unchecked, the District Court permitted both a distortion of the doctrine of separation of powers and the unhindered expansion of executive power. ¶

Courts of this country cannot in good faith hold foreign nations accountable for such violations, as the District Court did in Letelier v. Republic of Chile, 488 F. Supp. 665, 673 (D.D.C. 1980), without holding our own government to the same standard. ¶

Such favoritism violates basic principles of comity, and places the United States in a position of impunity above the rest of the international community.

The standard of review for motions to dismiss and motions for summary judgment is de novo. Wilson v. Peña, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996) {57kb.html} (citing McKinney v. Dole, 765 F.2d 1129, 1134 (D.C. Cir. 1985) and Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982)).

I.
The District Court Erred
by Failing to Grant Plaintiffs
All Procedural Protections
to Which They Are Entitled
Pursuant to a Motion to Dismiss.

The District Court dismissed Plaintiffs’ claims pursuant to Rules 12(b)(1) (lack of jurisdiction over subject matter) and 12(b)(6) (failure to state a claim upon which relief can be granted) of the Federal Rules of Civil Procedure. Schneider v. Kissinger, 310 F. Supp. 2d 251, 254 (D.D.C. 2004). ¶

The District Court made two errors of law. ¶

First, it did not make all inferences in the light most favorable to Plaintiffs when deciding Defendants’ Rule 12(b)(1) motion. ¶

Second, the District Court failed to grant Plaintiffs the procedural safeguards required before the disposal of cases under Rule 12(b)(6).

A.
The District Court Erred
by Failing to Make All Reasonable Inferences
in Favor of the Plaintiffs,
When Deciding on the Motion to Dismiss Pursuant to Rule 12(b)(1).

A motion to dismiss for lack of subject matter jurisdiction is not a proper avenue for a court to {p.9} weigh the factual allegations of each party and decide the merits of the case. See Hughes v. Rowe, 449 U.S. 5, 12 (1980). See also Info. Handling Services, Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (2003) {63kb.pdf, 63kb.pdf} (citing Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002) {56kb.html, 37kb.txt}). ¶

On a motion to dismiss, the plaintiff is entitled to all reasonable inferences that can be drawn in its favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Artis v. Greenspan, 158 F.3d 1301, 1305-1306 (D.C. Cir. 1998) {31kb.html, 28kb.txt}. ¶

The United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has repeatedly emphasized the importance of adhering to the Federal Rules when dismissing a case. 2  ¶

In their Motion to Dismiss, Defendants “vigorously contested” Plaintiffs’ factual allegations. (App. at 35.) ¶

The District Court improperly accepted Defendants’ factual allegations and made inferences in favor of Defendants based on these allegations, an error which was fatal to Plaintiffs’ case.

First, the District Court framed the entire case as an attack on U.S. foreign policy, ignoring Plaintiffs’ consistent pleadings about the narrowness of their claims. 3  This led to a finding that the case was nonjusticiable. ¶

Second, the District Court accepted Defendant Kissinger’s claim that he was acting under the direct orders of President Nixon. This led to the finding that the Defendant was immunized under the Westfall Act and that he could not have been acting under the color of Chilean law, as is necessary to find liability under the TVPA. Schneider, 310 F. Supp. 2d at 267. {p.10}

B.
The District Court Erred
When It Denied Plaintiffs the Procedural Safeguards to Which They Are Entitled When a Court Converts a 12(b)(6) Motion to Dismiss into a Rule 56 Motion for Summary Judgment by Looking Outside the Complaint.

When ruling on a 12(b)(6) motion, courts are bound by the facts presented in a well-pleaded complaint. Scheuer, 416 U.S. at 236; see also Albright v. Oliver, 510 U.S. 266, 268 (1994). ¶

Courts may consider and rely upon facts outside of the complaint, but doing so automatically converts the motion from a 12(b)(6) motion to dismiss into one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. ¶

In summary judgment motions, the court requires that parties be given ample opportunity to present evidence. Currier v. Postmaster Gen 7, 304 F.3d 87, 88 (D.C. Cir. 2002) {11kb.html, 5kb.txt}. As Rule 12(b) states:

The District Court did not exclude Defendant Kissinger’s factual allegations. ¶

In fact, the District Court accepted his version of the facts, and rejected Plaintiffs’ factual allegations. ¶

For example, while claiming that the facts in the opinion were taken from the Plaintiffs’ Complaints, the District Court relied on a personal narrative in Defendant Kissinger’s memoirs, The White House Years {LCCN: 79090006}, which Defendant Kissinger, himself, presented. Schneider, 310 F. Supp. 2d at 255 n.5. ¶

The passage seeks to justify Defendant Kissinger’s acts by framing them in the context of a turbulent time in U.S. history. ¶

The District Court’s reliance on the passage is inappropriate because the passage is self-serving to the Defendant, and, in any case, inadmissible. ¶

By relying on facts put forth by Defendants, the District Court converted the 12(b)(6) motion into one for summary judgment pursuant to Rule 56. {p.11}

The safeguards in Rule 56 allow parties to present such facts as would be admissible in evidence, including supporting affidavits and depositions. 4  Fed. R. Civ. P. Rule 56(e). See also First Chicago Int'l v. United Exchange Co., Ltd., 836 F.2d 1375, 1380 (D.C. Cir. 1988). ¶

The District Court erroneously denied Plaintiffs the opportunity to present evidence in a hearing and conduct discovery. ¶

This Court must remand this case so that Plaintiffs may present evidence already gathered and conduct the discovery to which they are entitled.

II.
The District Court Erred
in Finding Plaintiffs’ Claims Nonjusticiable
Because It Inappropriately Characterized the Claims as an Attack on Policy.

The District Court held that the political question doctrine rendered Plaintiffs’ claims nonjusticiable, according to the factors laid out in Baker v. Carr, 369 U.S. 186 (1962). Schneider, 310 F. Supp. 2d 251, 258 (D.D.C. 2004). ¶

In finding that the claims met the Baker standard for nonjusticiability, the District Court relied on Defendants’ characterization of the issues as an attack on United States policy. ¶

Plaintiffs consistently pleaded that they were not challenging United States policy toward Chile. ¶

Plaintiffs further provided the District Court with case law establishing that there is a difference between policy and implementation, and that the latter is justiciable. ¶

By ignoring Plaintiffs’ consistent pleadings about the nature of the claims, the District Court failed to make all inferences in favor of the Plaintiff. {p.12}

A.
The Implementation
of United States Policy Is
Justiciable.

The D.C. Circuit has established that there is a difference between policy and the implementation of policy, and that the latter is within the realm of the judiciary to oversee. ¶

In DKT Memorial Fund, Ltd. v. Agency for Int’l Development, the D.C. Circuit rejected a holding that a challenge to a United States agency’s implementation of United States foreign policy constituted a nonjusticiable political question because plaintiffs in that case challenged the legality of the implementation, not the “political and social wisdom” of the policy. 810 F.2d 1236, 1238 (D.C. Cir. 1987) (“whereas attacks on foreign policymaking are nonjusticiable, claims alleging non-compliance with the law are justiciable, even though the limited review that the court undertakes may have an effect on foreign affairs.”); see also Population Institute v. McPherson, 797 F.2d 1062, 1068-70 (D.D.C. 1986). ¶

Other circuits have also distinguished between policy and implementation, finding that the implementation of policy is justiciable. 5 

Plaintiffs accept that there was a general U.S. policy to oppose Dr. Allende, and have never challenged its legality. 6  ¶

Plaintiffs maintain that Defendant Kissinger’s actions were ultra vires. ¶

In the alternative, if this Court finds that Defendant Kissinger was implementing U.S. policy when he ordered the murder of General Schneider, the claims are nevertheless justiciable because the legality of the specific acts that implement a policy is reviewable by the courts. {p.13}

B.
The Factors Set Out in Baker v. Carr
Reveal that Plaintiffs’ Claims Are
Justiciable.

The District Court relied on the first four factors set out in Baker v. Carr, 369 U.S. 186 (1962), to analyze whether Plaintiffs’ case presented a non-justiciable political question. Schneider, 310 F. Supp. 2d at 258. Those factors are:

369 U.S. at 217.

1. Plaintiffs’ Claims Do Not Involve Matters Textually Committed to a Coordinate Branch of the Government.

The adjudication of the legality of the acts of one individual, whether or not a member of government, lies squarely within the power of the Judiciary. See U.S. Const. art. III, § 2, cl.1; Marbury v. Madison, 5 U.S. 137, 170 (1803). ¶

The District Court held that Plaintiffs’ claims raise questions that are constitutionally delegated to the Executive branch because ¶

Schneider, 310 F. Supp. 2d at 259. ¶

Plaintiffs do not contest the reasonableness of any Executive branch policy — they contest only the legality of the individual acts that caused the murder of General Schneider. ¶

The judiciary has the power to adjudicate such claims. 7  ¶

To hold otherwise would allow government officials to order murders with impunity, as long as the murders are couched within a veneer of policy. {p.14}

2. Judicially Discoverable and Manageable Standards Exist for Resolving Plaintiffs’ Claims.

The District Court stated that no standards exist for determining whether ¶

Schneider, 310 F. Supp. 2d at 261. ¶

Once again, the District Court misconstrued Plaintiffs’ claims by framing the issue as an attack on policy. The District Court also ignored that the D.C. Circuit has heard similar cases involving human rights abuses by governments and their employees.

The D.C. Circuit has held that courts should not invoke the political question doctrine to avoid adjudication of the violation of basic rights. ¶

In Letelier v. The Republic of Chile, the District Court held the Chilean government responsible for the assassination of Chilean ambassador Orlando Letelier on United States soil. 488 F. Supp. 665, 673 (D.D.C. 1980) (holding that ¶

In Ramirez de Arellano v. Weinberger, the D.C. Circuit held that the U.S. Army’s seizure of the plaintiff’s property for use as a training ground for Salvadoran soldiers was justiciable and that the Judiciary cannot rely on the political question doctrine to ¶

745 F.2d 1500, 1514-15 (D.C. Cir. 1984), vacated on other grounds, 471 U.S. 1500 (1985), rev’d, 788 F.2d 762 (D.D.C. 1986). ¶

Other federal circuits share this concern. 8  {p.15}

3. Adjudication of These Claims Does Not Require an Initial Policy Determination.

The District Court also held that adjudication of the case would require making policy determinations concerning ¶

Schneider, 310 F. Supp. 2d at 263. ¶

The District Court’s attribution of the specific decision to kidnap General Schneider to the Executive branch flatly contradicts the facts alleged by Plaintiffs. ¶

Plaintiffs alleged that Defendant Kissinger acted independently of the authorized channels of government: he kept the 40 Committee and the State Department uninformed of Track II. (Am. Compl. ¶ 20; App. at 8.) ¶

The District Court’s factual determination that the kidnapping and murder was a policy decision of the Executive was inappropriate at this stage.

4. Adjudication of these Claims Does Not Show a Lack of Respect to the Executive and Legislative Branches Because Both Have Already Expressed Concern Over U.S. Activities in Chile.

The District Court asserted that it would be impossible to resolve this case without either condemning officials of the Executive branch or undermining conclusions reached by Congress. Schneider, 310 F. Supp. 2d at 264. ¶

However, Congress has already condemned the actions leading to a coup in Chile and the Executive branch has expressed regret for the United States role in Chile in the 1970’s. 9  ¶

Therefore, adjudicating Plaintiffs’ personal injuries and determining the legality of Defendant Kissinger’s implementation of the United States government’s foreign policy towards {p.16} Allende’s presidency in Chile would neither disrespect nor contradict the other branches of government.

What is more, courts have consistently held that when executive officers step beyond the bounds of their authority in such a way as to threaten another individual’s life or liberty, the courts are the proper forum to remedy the harms. 10 

III.
The District Court Erred
in Immunizing Defendant Kissinger
Pursuant to the Westfall Act and
Substituting the United States as Defendant.

The District Court held that the United States was properly substituted as the sole Defendant in this case pursuant to the Westfall Act. Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified in part at 28 U.S.C. §§ 2671, 2674, 2679) (“The Westfall Act”). ¶

This holding was based on misconceptions relating to the scope and purpose of the Westfall Act and a misunderstanding of the Judiciary’s role in reviewing the Attorney General’s certification that Defendant Kissinger was acting within the scope of his employment.

A.
Congress Created the Westfall Act to
Immunize Only Low-Level Government Officials
for Garden-Variety Torts,
Not Egregious Violations of Human Rights.

Congress created the Westfall Act in response to the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), which modified the standard for scope of employment under the Federal Tort Claims Act to include governmental discretion. ¶

Congress was concerned that the change would expose low-level employees to unprecedented personal liability and that this would have an adverse {p.17} effect on the administration of government. H.R. Rep. No. 100-700, at 3 (1988), reprinted in 1988 U.S.C.C.A.N. 5945; see also Jamison v. Wiley, 14 F.3d 222, 226 (4th Cir. 1994).

The Act was meant to apply to garden variety torts where little or no government discretion was involved. Lyons v. Brown, 158 F.3d 605, 608 (1st Cir. 1998) {29kb.html, 27kb.html}; Wood v. United States, 995 F.2d 1122, 1125-26 (1st Cir. 1993) {99kb.html}. ¶

Congress included a list of duties that the Act was meant to cover: ¶

H.R. Rep. No. 100-700, at 3 (1988), 1988 U.S.C.C.A.N. {5945} at 5946. ¶

While this list is not exhaustive, it is illustrative of the kinds of torts the Act was created to address: non-discretionary torts committed by low-level employees, usually involving negligence.

Congress specifically stated that it did not intend the Westfall Act to provide immunity for egregious conduct of federal employees. Id. at 5 (stating that ¶

See Wood v. United States, 995 F.2d at 1127 {99kb.html} (holding that an Army Major’s sexual harassment of his employee was egregious and therefore actionable).

Defendant Kissinger’s torts were egregious and not the result of mere negligence or poor judgment. ¶

Defendant Kissinger is accused of having aided and abetted the kidnapping and murder of a Chilean General. ¶

The District Court erred when it characterized these torts as those that the Westfall Act was created to address.

Assuming, arguendo, that the intent of Congress in drafting the Westfall Act is unclear, the Supreme Court has held that when there is no direct authorization by Congress, courts should not interpret rules to dilute or curtail a fundamental right. Kent v. Dulles, 357 U.S. 116, 129 (1958) (holding that it would construe narrowly all delegated powers to curtail or dilute the right to activities {p.18} and enjoyment, such as travel). ¶

The District Court’s broad interpretation of the Westfall Act denied Plaintiffs their fundamental right to be free from torture and extrajudicial killing and to redress for their injuries.

B.
The Westfall Act Does Not
Immunize Government Employees
for Violations of the ATCA.

The Westfall Act does not immunize officials for a ¶

28 U.S.C. § 2679(b)(2)(B). ¶

The District Court erroneously held that the Alien Tort Claims Act (“ATCA”) 11  is not a statute that can be violated for the purposes of the Westfall exception to immunity. Schneider, 310 F. Supp. 2d at 267.

A plain-language reading of the Westfall Act leads to a conclusion that the ATCA is a statute for the purposes of the § 2679(b)(2)(B) exception. “Authorize,” under the definition in Black’s Law Dictionary, is “[t]o give legal authority; to empower.” Black’s Law Dictionary 143 (8th ed. 2004). ¶

The ATCA gives federal courts the authority and empowers them to hear cases brought by an alien involving any tortious violation of international law. ¶

Recently, the Supreme Court confirmed in Sosa v. Alvarez-Machain that the ATCA provides jurisdiction for a number of international norms that have become part of federal common law and that federal courts have the power to recognize what these international norms are. 124 S.Ct. 2739, 2765 (2004) {785kb.pdf}.

A look at the purpose of the Westfall Act leads to the same conclusion. In passing the Westfall Act, Congress expressed that the act does ¶

H.R. Rep. No. 100-700, at 7 (1988) , 1988 U.S.C.C.A.N. {5945} at 5950-51 (emphasis added). ¶

Congress also made clear that the Westfall Act does not change the law ¶

Id., 1988 U.S.C.C.A.N. {5945} at 5950-51. ¶

Congressman Barney Frank, speaking during debate over H.R. 4612 (The Westfall Act), made clear that ¶

134 Cong. Rec. H4718-03 (daily ed. June 27, 1988) (statement of Rep. Frank) (emphasis added). ¶

When the District Court interpreted the Westfall Act to exclude the ATCA from the category of “federal statutes” under Section 2679(b)(2)(B), it diminished the right of aliens to sue under the ATCA and contravened the express will of Congress.

Additionally, when two statutes are capable of co-existence, each must be regarded as effective. Traynor v. Turnage, 485 U.S. 535, 548 (1988) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)) (holding that “[t]he courts are not at liberty to pick and choose among congressional enactments....”)

C.
The District Court Erred
in Denying Plaintiffs the Opportunity
to Contest the Attorney General’s Certification
that Defendant Was Acting Within the
Scope of His Employment.

Defendant Kissinger’s immunity turns on questions of fact. ¶

The District Court erred when it accepted the Attorney General’s certification that Defendant Kissinger was acting within the scope of his employment without allowing Plaintiffs an opportunity to rebut the certification through discovery and an evidentiary hearing. ¶

Because there is a material dispute concerning whether Defendant Kissinger was acting within the scope of his employment, this Court must reverse the holding of the District Court and allow Plaintiffs the opportunity for discovery and an evidentiary hearing.

The Westfall Act gives the Attorney General the ability and discretion to certify that an employee was acting within the scope of his employment when he committed a tort. 28 U.S.C. § 2679(d)(1). ¶

The Supreme Court held in Gutierrez de Martinez v. Lamagno that this certification is subject to judicial review as it ¶

515 U.S. 417, 434 (1995). ¶

Concerned about the importance of separation of powers and checks-and-balances, the Supreme Court in Lamagno warned that considering the Attorney General’s decision unreviewable would reduce the role of the court to “only rubber-stamp work.” Id. at 429.

The D.C. Circuit held in Kimbro v. Velten, that when there is a material dispute as to whether the defendant was acting within the scope of his employment, the district court must resolve it in an evidentiary hearing. 30 F.3d 1501, 1508 (D.C. Cir. 1994). ¶

According to the Kimbro court, the district court hearing is to be ¶

Id. at 1509 (emphasis added).

Relying on the holding in Stokes v. Cross, the District Court found that because it accepted as true “the plaintiff’s factual assertions regarding the parameters of Dr. Kissinger’s job role and duties,” there was no need for an evidentiary hearing. Schneider, 310 F. Supp. 2d at 265, n.14 (citing Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003) {55kb.pdf, 55kb.pdf} (“Not every complaint will warrant further inquiry into the scope-of-employment issue”)). ¶

The District Court, however, ignored that the Stokes court further held that a plaintiff need not set out in detail the facts upon which the complaint is based, but that the ¶

Stokes, 327 F.3d at 1215 (emphasis added) {55kb.pdf, 55kb.pdf} (quoting Swierkewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)).

Plaintiffs met the Stokes standard by raising a material dispute relating to Defendant Kissinger’s actions and requesting discovery on the issues. ¶

Plaintiffs pleaded to the District Court that the scope of employment determination ¶

(Pls.’ Consolidated Opp’n To Defs.’ Mot. to Dismiss at 6; App. at 102.) ¶

In accepting the Attorney General’s certification, the District Court relied on one single fact: that ¶

Schneider, 310 F. Supp. 2d at 266 (emphasis in original) (quoting Compl. ¶ 18). ¶

This statement shows a vague order, at best, and does not conclusively establish President Nixon’s involvement in or knowledge of the plot against Schneider. ¶

Plaintiffs challenged this factual determination and pleaded to the Court that the record on the matter is incomplete — there are an unknown number of documents that have not yet been made public, which further show the details of the Executive’s relations with Chile. ¶

(Kornbluh affidavit ¶ 5; App. at 139-140.) ¶

Some of these documents could further define what President Nixon knew, and whether Defendant Kissinger was acting within the scope of his employment.

In further effort to establish facts regarding Defendant Kissinger’s actions, Plaintiffs asked the District Court on June 3, 2002, for an order expediting the declassification of certain telephone communications by Defendant Kissinger relating to Chile. (App. at 146-58.) The District Court denied this motion. (App. at 159.)

Further discovery is necessary to show the extent of President Nixon’s knowledge and control of Defendant Kissinger’s actions, as well as the circumstances surrounding the decision to kidnap General Schneider. ¶

By ignoring the contested issues of fact, the District Court performed the “rubber-stamping” function of which the Lamagno court warned. 515 U.S. at 429 ¶

IV.
The District Court Erred
in Finding That Defendant Kissinger
Could Not Be Held Liable Under the
Torture Victim Protection Act.

The Torture Victim Protection Act (“TVPA”) was enacted in recognition of the universal prohibition on torture and the United States’ international obligation to implement the Convention Against Torture through domestic legislation. 28 U.S.C. § 1350, note. ¶

Designed to enhance the already-existing cause of action under the ATCA, the TVPA provides a cause of action to victims of torture, cruel, inhuman and degrading treatment and extrajudicial killing. H.R. Rep. 102-367(I) at 4, 1992 U.S.C.C.A.N. 84, 86. ¶

Under the TVPA, those who commit these acts and those who aid and abet them are equally liable.

The District Court’s holding that Defendant Kissinger could not be held liable for his actions in aiding and abetting the torture and extrajudicial killing of General Schneider was in error for two reasons. ¶

First, the District Court’s conclusion that Defendant Kissinger was not acting under “color of foreign law,” while admitting that he acted in a conspiracy with foreign military officers is ill-reasoned at best. ¶

Second, the District Court’s determination that Defendant Kissinger is entitled to qualified immunity because he could not have known of the prohibitions on torture and murder at the time of his actions strains the bounds of credibility.

A.
The District Court Erred
in Finding That the Defendant Was Not
Acting Under Color of Foreign Law While
Finding that His Co-Conspirators Were Acting
Under Color of Chilean Law.

The Senate Report on the TVPA clarified that the Act applies to those who “ordered, abetted, or assisted in” the violation of the rights enumerated. S. Rep. No. 102-249, at 8 (1991). The Report states:

(Id. at 9.)

Because the Act provides for third-party liability, Defendant Kissinger need not have been the one who pulled the trigger in order to be liable. {18 U.S.C. § 2}.

The TVPA requires that in order to be liable, a party facing suit must have been acting under the ¶

28 U.S.C. § 1350, note. ¶

To interpret the term “color of law”, the legislative history of the TVPA directs us to look to 42 U.S.C. § 1983 (or its criminal equivalent 18 U.S.C. § 242) for the relevant standard. H.R. Rep. No. 102-367(I) (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87. ¶

Under § 1983, a non-state actor who aids and abets the commission of a violation of the Constitution is considered to be acting under color of state law if he is a ¶

United States v. Price, 383 U.S. 787, 794 (1966); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970).

Applying the “willful participant” standard in 42 U.S.C. § 1983 to the “color of foreign law” requirement of the TVPA, it is clear that Defendant Kissinger’s coordinated actions with Chilean military officers satisfy this requirement. ¶

Defendant Kissinger used Chilean generals to carry out his plan to “neutralize” General Schneider. (Am. Compl. ¶¶ 22, 25-41; App. at 169, 169-73.) ¶

He ordered that the CIA establish contact with coup-plotters and furthered the plot against General Schneider. (Compl. ¶ 25; App. at 9; Am. Compl. ¶ 25; App. at 169). ¶

He relied on his co-conspirators’ position within the Chilean government to carry out the plan. (Am. Compl. ¶¶ 25-32; App. at 169-71.) ¶

Clearly, and as the District Court does not deny, Defendant Kissinger was a “willful participant” with persons who were acting under the color of Chilean law.

The District Court erroneously held that because Defendant Kissinger was acting under the direct orders of President Nixon, he was acting pursuant to United States law, and that, ipso facto, he could not have been acting under color of Chilean law. Schneider, 310 F. Supp. 2d at 267. ¶

This holding stems from two inappropriate assumptions: that Defendant Kissinger was acting under the {p.24} direct orders of President Nixon, and that acting pursuant to United States law precludes one from acting under color of foreign law.

First, it is far from clear from the facts pleaded that President Nixon’s orders included the kidnapping and assassination of General Schneider. This is a factual issue that should have been addressed through discovery and an evidentiary hearing.

Second, assuming arguendo, that Defendant Kissinger was acting pursuant to United States law, this does not preclude an argument that he was also acting under the color of Chilean law through his co-conspirators. The District Court dismissed the claim based on this premise but cited no authority to support it. Id.

B.
The District Court Erred
in Finding That the Right to Be Free From
Torture, Cruel and Inhuman or Degrading Treatment
and Extrajudicial Killing Were Not
Clearly Established at the Time.

The District Court held that even if Defendant Kissinger was found to be acting under color of foreign law he would still be entitled to qualified immunity from liability under the standard set forth in Harlow v. Fitzgerald that ¶

Schneider, 310 F. Supp. 2d at 267 (citing Harlow, 457 U.S. 800, 818 (1982)). ¶

The District Court’s conclusion is in error because proscriptions against torture, extrajudicial killing, and cruel, inhuman and degrading treatment were clearly established at the time of Defendant Kissinger’s actions.

The determination of the existence of a clearly established right is not a rigid analysis; an individual cannot claim immunity simply because there is no prior law on point. See, e.g., United States v. Lanier, 520 U.S. 259 (1997). ¶

In Lanier a judge sexually assaulted a woman and was prosecuted under § 242 for violating the civil rights of the victim while acting under color of law. Id. In the lower court opinion {183kb.txt, 137kb.html, 155kb.html}, the Sixth Circuit reasoned that since there was no prior decision on point, it was not clearly established that sexual assault was a violation of rights that a reasonable officer {p.25} should know. Id. at 259, 270. ¶

On appeal, the Supreme Court reversed, reasoning that despite the absence of a prior decision on point, sexual assault is such an egregious violation of the person that state officers had fair warning that the conduct would violate a right protected under the laws of the United States. Id. at 259-60, 270.

Speaking directly to this point, Justice Brennan explained in his concurrence in Harlow that government employees are subject to immunity ¶

Harlow, 457 U.S. at 821. ¶

There was no ambiguity in the state of the law regarding torture and extrajudicial killing at the time Defendant Kissinger aided and abetted the murder of General Schneider.

The prohibitions on the crimes alleged in the Complaint are deeply rooted in both domestic and international law, and were actionable long before 1970. ¶

Defendant Kissinger’s actions violate basic rights such as the right to life and liberty, which are clearly established in the laws of the United States and Chile, and supported by many years of statutory and common law. ¶

Murder has been prohibited for centuries. ¶

The international community has condemned the use of torture since the turn of the century. 12  ¶

U.S. courts recognize torture and extrajudicial killing as violations of jus {p.26} cogens norms. 13  ¶

All of these violations have been actionable by aliens under the ATCA since 1789. ¶

The District Court’s finding that in 1970 a reasonable person could not have expected to be held personally liable for torture and murder strains credibility.

V.
The United States Does Not Enjoy
Sovereign Immunity
for Violations of Peremptory Norms.

The District Court erroneously found that a waiver of sovereign immunity must be explicit and that it cannot be implied ¶

Schneider, 310 F. Supp. 2d at 268 (internal quotation marks omitted). ¶

Such a determination creates an intolerable situation in which the government enjoys absolute immunity, allowing it to violate laws with impunity.

Separation of powers and principles of comity and justice require that the United States not be granted immunity for violations of peremptory norms of international law for which no person or state may claim immunity. ¶

Plaintiffs assert that sovereign immunity should not act as an absolute bar to judicial review when the result would be substantial injustice.

A.
Sovereign Immunity Cannot Preempt the Nonderogable Nature of Jus Cogens Norms.

Jus cogens norms are those ¶

Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) {122kb.html, 93kb.html, 224kb.pdf} (quoting Vienna Convention on the Law of Treaties {458kb.pdf}, art. 53, May 23, 1969, 1155 U.N.T.S. {331} 332, {at 344}, 8 I.L.M. 679) {U.S. Senate Treaty No. 92-12, President transmitted: Nov. 22 1971, status}. ¶

Enjoying the highest status in international law, jus cogens norms are unconditionally binding on all nations and cannot be preempted by treaty. Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 940 {p.27} (D.C. Cir. 1988). ¶

Violations of jus cogens cannot be considered sovereign acts under international law; therefore, a state that violates jus cogens norms is ¶

Siderman de Blake, 965 F.2d. at 718 {122kb.html, 93kb.html, 224kb.pdf}.

Plaintiffs recognize that this Court is bound by its decision in Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir 1994) (finding a lack of evidence to indicate that Germany intentionally or implicitly waived its immunity by committing jus cogens violations). ¶

Nonetheless, Plaintiffs urge this Court to reconsider the Princz decision in light of recent developments in international law. 14  ¶

Increasingly, domestic and international courts have limited the principle of sovereign immunity in order to hold accountable perpetrators of serious violations of international law. 15  ¶

Within the United States, courts have allowed civil actions against former heads of state for violations of international law. See Kadic v. Karadzic {72kb.html, 100 kb rtf, 85kb.html}, 70 F.3d 232 (2d Cir. 1995) (holding the former President of the Bosnian-Serb Republic liable for systematic human rights violations such as genocide, mass rape, and torture that were committed while Karadzic acted under color of law as president).

In limiting sovereign immunity, courts are affirming that such norms cannot be subject to derogation and that nations cannot use sovereign immunity as a means to circumvent liability. ¶

In {p.28} Sosa v. Alvarez-Machain, the Supreme Court recognized the importance of giving U.S. courts the discretion to recognize and apply a “narrow class of international norms.” 124 S.Ct. 2739, 2764-65 (2004) {785kb.pdf} (observing that ¶

Clearly, jus cogens violations, having the highest status within international law, fall within the ambit of the Supreme Court’s observation. ¶

The door must remain open, allowing courts to provide a remedy for those individuals affected by a nation’s violations of jus cogens norms. ¶

In rendering its decision, the District Court missed an opportunity to prevent injustice from occurring. ¶

Plaintiffs ask this Court to rectify that situation.

B.
Requiring an Express Waiver of Sovereign Immunity
for a Court to Hear an Action Results in a
Distortion of the Doctrine of Separation of Powers
and in the Unchecked Growth of Executive Power.

The District Court erred in its determination that a waiver of sovereign immunity must be explicit. ¶

If sovereign immunity were absolute, the doctrine of separation of powers would be turned on its head and allow the unchecked growth of executive power. See Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case], 343 U.S. 579, 637-38 (1952) (Jackson, concurring) (holding that when the Executive ¶

Marbury v. Madison, 5 U.S. 137, 163 176 (1803) (holding that denial of a judicial remedy for a wrong is such an “obloquy” on American justice that it should not be tolerated save under the most limited conditions and judicial review is required to preserve the “distinction [] between a government with limited and unlimited powers”). ¶

If the government must always express its amenability to suit, then the doctrine of {p.29} sovereign immunity becomes impenetrable and prevents the Judiciary from fulfilling its role of checking the power of the Executive.

Congress itself has expressly indicated that the Executive is not authorized to commit unlawful acts, much less violations of fundamental norms, in the name of national security. 50 U.S.C. § 413b(a)(5) (“The National Security Act”) (prohibiting the President from authorizing ¶

When sovereign immunity prohibits U.S. courts from exercising the power of judicial review, the Judiciary becomes impotent to check the executive when it commits unlawful acts or to require that the United States abide by its own laws.

C.
The Principles of Comity Among Nations Demands That the United States Hold Itself Accountable for the Same Violations of Law for Which It Holds Foreign Nations to Account.

Where the United States has violated peremptory norms, it cannot shield itself with immunity. In Letelier v. Republic of Chile, the D.C. District Court held that a foreign country could not order an assassination on our soil. 488 F. Supp. 665, 673 (D.D.C. 1980). The Letelier court stated:

Id.

If U.S. courts can exercise jurisdiction over a foreign nation for an assassination committed in the United States but cannot exercise jurisdiction over the United States when it commits similar acts on foreign soil, the results are hypocrisy and illogic. ¶

Sovereign immunity must not limit the ability of U.S. courts to exercise jurisdiction over the United States and its employees when their conduct results in assassination and other grave violations of law. {p.30}

Conclusion

Allowing Defendants’ narration of the political context surrounding the facts to influence its holding, the District Court erroneously dismissed this case. ¶

The District Court denied Plaintiffs the procedural safeguards to which they were entitled, and misread substantive sections of the law. ¶

In so doing, the District Court perpetuated a grave injustice on Plaintiffs, who have waited over thirty years to adjudicate Defendant Kissinger’s complicity in the death of General Schneider. ¶

Plaintiffs respectfully request that mis Court reverse and remand the District Court’s ruling.

Respectfully submitted,

 

{Signature}

Michael E. Tigar
D.C. Bar No. 103762
American University
Washington College of Law
Suite 206(C)
4801 Massachusetts Avenue, NW,
Washington, D.C. 20016
(202) 274-4088

Dated: November 23, 2004
Washington, D.C. {p.31}

______________________

Certificate of Service

I hereby certify that on November 23, 2004, I hand delivered a true copy of the foregoing Brief for Appellants to counsel for Defendants as follows:

{Signature}

James B Cowden

______________________

{Addendum cover:}

{Case caption, omitted}

Addendum to Brief for Appellants

______________________

{Unnumbered second page:}

Table of Contents

__________

Page

18 U.S.C. § 242, (2004) 

1

Alien Tort Claims Act, 28 U.S.C. § 1350 (2004) 

3

Torture Victim Protection Act, at 28 U.S.C. § 1350 {note}, Pub. L. 102-256, 106 Stat. 73

4

Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified in part at 28 U.S.C. §§ 2671, 2674, 2679). (“Westfall Act”)

6

28 U.S.C. § 2679 (2004)

11

42 U.S.C. § 1983 (2004)

15

{p.1:}

______________________

*** Current Through P.L. 108-410, Approved 10/30/04 ***
*** With a Gap of 108-375 ***

Title 18. Crimes And Criminal Procedure
Part I. Crimes
Chapter 13. Civil Rights

§ 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

History:

(June 25, 1948, ch 645, § 1, 62 Stat. 696; April 11, 1968, P.L. 90-284, Title I, § 103(b), 82 Stat. 75; Nov. 18, 1988, P.L. 100-690, Title VII, Subtitle B, § 7019, 102 Stat. 4396.)

(As amended Sept. 13, 1994, P.L. 103-322, Title VI, § 60006(b), Title XXXII, Subtitle A, § 320103(b), Subtitle B, § 320201(b), Title XXXIII, § 330016(1)(H), 108 Stat. 1970, 2109, 2113, 2147; Oct. 11, 1996, P.L. 104-294, Title VI, §§ 604(b)(14)(B), 607(a), 110 Stat. 3507, 3511.)

History; Ancillary Laws And Directives

Prior law and revision:

This section is based on Act March 4, 1909, ch 321, § 20, 35 Stat. 1092 (former 18 U.S.C. § 52).

Reference to persons causing or procuring was omitted as unnecessary in view of definition of “principal” in 18 U.S.C. § 2.

A minor change was made in phraseology.

Amendments:

1968. Act April 11, 1968 inserted “; and if death results shall be subject to imprisonment for any term of years or for life”.

1988. Act Nov. 18, 1988 inserted “and if bodily injury results shall be fined under this title or imprisoned not more than ten years, or both;”.

1994. Act Sept. 13, 1994, substituted “person in” for “inhabitant of, substituted “such person” for “such inhabitant”, and inserted “, or may be sentenced to death”. {p.2}

Section 320103(b), as amended by Act Oct. 11, 1996 (effective on 9/13/94, pursuant to § 604(d) of such Act, which appears as 18 U.S.C. § 13 note), inserted “from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire,”, inserted “from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or”, substituted “imprisoned” for “shall be subject to imprisonment”, and inserted “, or both”.

Section 330016(1)(H) of such Act substituted “under this title” for “not more than $ 1,000”.

1996. Act Oct. 11, 1996 (effective on 9/13/94, pursuant to § 604(d) of such Act, which appears as 18 U.S.C. § 13 note) amended § 320103(b) of Act Sept. 13, 1994, which amended this section.

Such Act further substituted “any State, Territory, Commonwealth, Possession, or District” for “any State, Territory, or District”.

Notes:

Cross References

______________________

Alien Tort Claims Act

28 USCS § 1350 (2004)

{28 U.S.C.A. § 1350 (2004)}

{28 U.S.C. § 1350 (2003)}

{28 U.S.C. § 1350 (2001)}

*** Current Through P.L. 108-410, Approved 10/30/04 ***
*** With a Gap of 108-375 ***

Title 28. Judiciary and Judicial Procedure
Part IV. Jurisdiction and Venue
Chapter 85. District Courts; Jurisdiction

§ 1350. Alien’s action for tort

The 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.

History:

(June 25, 1948, ch 646, § 1, 62 Stat. 934.)

History; Ancillary Laws And Directives

Prior law and revision:

Based on title 28, U.S.C, 1940 ed., § 41(17) (Mar. 3, 1911, ch. 231, § 24, P 17, 36 Stat. 1093).

{Origin: Judiciary Act of 1789, § 9 (U.S. Congress 1-1, Sept. 24 1789), 1 Stat. 73-93, at 77.  –CJHjr}.

Words “civil action” were substituted for “suits,” in view of Rule 2 of the Federal Rules of Civil Procedure.

Changes in phraseology were made. {p.4}

______________________

Torture Victim Protection Act

28 USCS § 1350, note (2004)

{28 U.S.C.A. § 1350, note (2004)}

{28 U.S.C. § 1350, note (2003)}

{28 U.S.C. § 1350, note (2001)}

*** Current Through P.L. 108-410, Approved 10/30/04 ***
*** With a Gap of 108-375 ***

Title 28. Judiciary and Judicial Procedure
Part IV. Jurisdiction and Venue
Chapter 85. District Courts; Jurisdiction

§ 1350. Alien’s action for tort

The 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.

Other provisions:

Torture Victim Protection Act of 1991, Act March 12, 1992, P. L. 102-256, 106 Stat. 73, provides:

“Section 1. Short title

“This Act may be cited as the Torture Victim Protection Act of 1991’.

“Sec. 2. Establishment of civil action

“(a) Liability. An individual who, under actual or apparent authority, or color of law, of any foreign nation —

“(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

“(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

“(b) Exhaustion of remedies. A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.

“(c) Statute of limitations. No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.

“Sec. 3. Definitions

“(a) Extrajudicial killing. For the purposes of this Act, the term ‘extrajudicial killing’ means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.

“(b) Torture. For the purposes of this Act —

“(1) the term ‘torture’ means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or {p.5} suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and

“(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from —

“(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

“(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

“(C) the threat of imminent death; or

“(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”. {p.6}

______________________

The Westfall Act

Federal Employees Liability Reform and Tort Compensation Act

Pub. L. No. 100-694, 101 Stat. 4563 (1988)

Section 1. Short Title.

This Act may be cited as the “Federal Employees Liability Reform and Tort Compensation Act “28 USC 1 note” of 1988”.

Sec. 2. “28 USC 2671 note” Findings and Purposes.

(a) Findings. — The Congress finds and declares the following:

(1) For more than 40 years the Federal Tort Claims Act has been the legal mechanism for compensating persons injured by negligent or wrongful acts of Federal employees committed within the scope of their employment.

(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment.

(3) Because Federal employees for many years have been protected from personal common law tort liability by a broad based immunity, the Federal Tort Claims Act has served as the sole means for compensating persons injured by the tortious conduct of Federal employees.

(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees.

(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.

(6) The prospect of such liability will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts.

(7) In its opinion in Westfall v. Erwin, the Supreme Court indicated that the Congress is in the best position to determine the extent to which Federal employees should be personally liable for common law torts, and that legislative consideration of this matter would be useful.

(b) Purpose. — It is the purpose of this Act to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States.

Sec. 3. Judicial and Legislative Branch Employees.

Section 2671 of title 28, United States Code, is amended in the first full paragraph by {p.7} inserting after “executive departments,” the following: “the judicial and legislative branches,”.

Sec. 4. Retention of Defenses.

Section 2674 of title 28, United States Code, is amended by adding at the end of the section the following new paragraph:

Sec. 5. Exclusiveness of Remedy.

Section 2679(b) of title 28, United States Code, is amended to read as follows:

Sec. 6. Representation and Removal.

Section 2679(d) of title 28, United States Code, is amended to read as follows:

Sec. 7. “28 USC 2671 note” Severability.

If any provision of this Act or the amendments made by this Act or the application of the provision to any person or circumstance is held invalid, the remainder of this Act and such amendments and the application of the provision to any other person or circumstance shall not be affected by that invalidation.

Sec. 8. “28 USC 2679 note” Effective Date.

(A) General Rule. — This Act and the amendments made by this Act shall take effect on the date of the enactment of this Act.

(B) Applicability to Proceedings. — The amendments made by this Act shall apply to all claims, civil actions, and proceedings pending on, or filed on or after, the date {p.9} of the enactment of this Act.

(C) Pending State Proceedings. — With respect to any civil action or proceeding pending in a State court to which the amendments made by this Act apply, and as to which the period for removal under section 2679(d) of title 28, United States Code (as amended by section 6 of this Act), has expired, the Attorney General shall have 60 days after the date of the enactment of this Act during which to seek removal under such section 2679(d).

(D) Claims Accruing Before Enactment. — With respect to any civil action or proceeding to which the amendments made by this Act apply in which the claim accrued before the date of the enactment of this Act, the period during which the claim shall be deemed to be timely presented under section 2679(d)(5) of title 28, United States Code (as amended by section 6 of this Act) shall be that period within which the claim could have been timely filed under applicable State law, but in no event shall such period exceed two years from the date of the enactment of this Act.

Sec. 9. “16 USC 831c-2” Tennessee Valley Authority.

(A) Exclusiveness of Remedy. — (1) An action against the Tennessee Valley Authority for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Tennessee Valley Authority while acting within the scope of this office or employment is exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim. Any other civil action or proceeding arising out of or relating to the same subject matter against the employee or his estate is precluded without regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a cognizable action against an employee of the Tennessee Valley Authority for money damages for a violation of the Constitution of the United States.

(B) Representation and Removal. — (1) Upon certification by the Tennessee Valley Authority that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding heretofore or hereafter commenced upon such a claim in a United States district court shall be deemed an action against the Tennessee Valley Authority pursuant to 16 U.S.C. 831c(b) and the Tennessee Valley Authority shall be substituted as the party defendant.

(2) Upon certification by the Tennessee Valley Authority that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Tennessee Valley Authority to the district court of the United States for the district and division embracing the place wherein it is pending. Such action shall be deemed an action brought against the Tennessee Valley Authority under the provisions of this title and all references thereto, and the Tennessee Valley Authority shall be substituted as the party defendant. This certification of the Tennessee Valley Authority shall conclusively establish scope of office or employment for purposes of removal

(3) In the event that the Tennessee Valley Authority has refused to certify scope of office {p.10} or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action shall be deemed an action brought against the Tennessee Valley Authority, and the Tennessee Valley Authority shall be substituted as the party defendant. A copy of the petition shall be served upon the Tennessee Valley Authority in accordance with the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Tennessee Valley Authority to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.

(4) Upon certification, any actions subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the Tennessee Valley Authority and shall be subject to the limitations and exception is applicable to those actions.

(C) Retention of Defenses. — Section 2674 of title 28, United States Code, is amended by adding at the end thereof the following new paragraph:

______________________

28 USCS § 2679 (2004)

{28 U.S.C.A. § 2679 (2004)}

{28 U.S.C. § 2679 (2003)}

{28 U.S.C. § 2679 (2001)}

*** Current Through P.L. 108-410, Approved 10/30/04 ***
*** With a Gap of 108-375 ***

Title 28. Judiciary and Judicial Procedure
Part VI. Particular Proceedings
Chapter 171. Tort Claims Procedure

§ 2679. Exclusiveness of remedy

(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.

(b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government —

(A) which is brought for a violation of the Constitution of the United States, or

(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.

(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.

(d)(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. {p.12}

(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

(3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.

(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

(5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if—

(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and

(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

(e) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677, and with the same effect.

History:

(June 25, 1948, ch 646, § 1, 62 Stat. 984; Sept. 21, 1961, P.L. 87-258, § 1, 75 Stat. 539; July 18, 1966, P.L. 89-506, § 5(a), 80 Stat. 307; Nov. 18, 1988, P.L. 100-694, §§ 5, 6, 102 Stat. 4564.)

History; Ancillary Laws And Directives

Prior law and revision:

Based on title 28, U.S.C, 1940 ed., § 945 (Aug. 2, 1946, ch. 753, § 423, 60 Stat. 846). Changes were made in phraseology.

Senate Revision Amendment {p.13}

The catchline and text of this section were changed and the section was renumbered “2678” by Senate amendment. See 80th Congress Senate Report No. 1559.

Amendments:

1961. Act Sept. 21, 1961 (effective 6 months after enactment and applicable as provided by § 2 of such Act, which appears as a note to this section) designated the existing provisions as subsec. (a); and added subsecs. (b)-(e).

1966. Act July 18, 1966 (effective 6 months or more after enactment, as provided by § 10 of such Act, which appears as 28 U.S.C. § 2672 note) substituted subsec. (b) for one which read:

1988. Act Nov. 18, 1988 (effective upon enactment and applicable as provided by § 8 of such Act, which appears as a note to this section), substituted subsecs. (b) and (d) for ones which read:

Other provisions:

Effective date and application of 1961 amendments.

Act Sept. 21, 1961, P.L. 87-258, § 2, 75 Stat. 539, provided:

Effective date and application of Nov. 18, 1988 amendments.

Act Nov. 18, 1988, P.L. 100-694, § 8, 102 Stat. 4565, provide:

Tennessee Valley Authority.

For provisions relating to employees liability and reform with regard to the Tennessee Valley Authority, see Act Nov. 18, 1988, P.L. 100-694, § 9, 102 Stat. 4566, which appears as 16 U.S.C. § 831c-2.

Notes:

Code of Federal Regulations

Nuclear Regulatory Commission — Administrative claims under Federal Tort Claims Act, 10 CFR Part 14.

Department of Justice — Defense of certain suits against Federal employees: certification and defense of certain suits against program participants under the National Swine Flu Immunization Program of 1976; and certification and decertification of certain suits based upon acts or omissions of contractors in carrying out an atomic weapons testing program under a contract with the United States, 28 CFR Part 15.

Department of the Air Force—Administrative claims, 32 CFR Part 842.

Cross References

______________________

42 USCS § 1983 (2004)

{42 U.S.C.A. § 1983 (2004)}

{42 U.S.C. § 1983 (Jan. 22 2002)}

{42 U.S.C. § 1983 (2001)}

*** Current Through P.L. 108-410, Approved 10/30/04 ***
*** With a Gap of 108-375 ***

Title 42. The Public Health and Welfare
Chapter 21. Civil Rights
{Subchapter I}. Generally

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

History:

(R. S. § 1979; Dec. 29, 1979, P.L. 96-170, § 1, 93 Stat. 1284; Oct. 19, 1996, P.L. 104-317, Title III, § 309(c), 110 Stat. 3853.)

History; Ancillary Laws And Directives

Explanatory notes:

This section formerly appeared as 8 USC § 43. R.S. § 1979 was derived from Act April 20, 1871, ch 22, § 1, 17 Stat. 13.

Amendments:

1979. Act Dec. 29, 1979 inserted “or the District of Columbia” and “For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”.

1996. Act Oct. 19, 1996 inserted “, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”.

Other provisions:

Application of Dec. 29, 1979 amendments.

Act Dec. 29, 1979, P.L. 96-170, § 3, 93 Stat. 1284, which appears as 28 U.S.C. § 1343 note, provided that the amendments made to this section by such Act are applicable with respect to any deprivation of rights, privileges, or immunities secured by the Constitution and laws occurring after enactment on Dec. 29, 1979. {p.16}

Notes:

Cross References