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. ¶