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Full-text: January 31 2002 Schneider, 310 F. Supp. 2d 251 (March 30 2004), subsequently, 412 F.3d 190 (No. 04-5199, June 28 2005) (U.S.-Chile, murder of René Schneider, Oct. 22 1970).

United States District Court for the District of Columbia

Filed, Jan 31 2002, Nancy Mayer Whittington, Clerk U.S. District Court

Civ. No. 01-1902 (HHK)

Rene Schneider, et al.,)
Henry A. Kissinger, et al.,)

Reply Memorandum in Support of Defendants' Motion to Dismiss


The complaint in this case alleges that the President of the United States gave orders to Dr. Kissinger and then Director of Central Intelligence Helms that “the necessary steps be taken to prevent Dr. Allende from becoming President of Chile” and that the CIA “‘play a direct role in organizing a military coup d’etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” Compl. ¶ 18 (emphasis added). The plaintiffs’ Opposition concedes that “Defendants Kissinger and Helms were Executive Branch employees and that their acts touched upon foreign relations” of the United States. Id. at 14. Nevertheless, the plaintiffs contend that Dr. Kissinger and Ambassador Helms did not act in the scope of federal employment. Further, according to the plaintiffs, their claims do not implicate foreign affairs or national security policy and therefore do not raise a political question. Similarly, the plaintiffs insist that Dr. Kissinger and Ambassador Helms are not immune from suit and even that they somehow acted under color of Chilean law when carrying out the President’s orders. Finally the plaintiffs urge that the United States has no sovereign immunity for these actions taken at the President’s direction. As demonstrated below, in light of their own allegations the plaintiffs’ arguments are without merit, and this case should be dismissed.

Scope of Office or Employment

A party challenging a Westfall Act certification bears the burden of establishing that the defendant government official acted outside the scope of federal office or employment. See Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994). The plaintiffs offer first that “certification that an employee was acting within the scope of employment involves settling issues of fact that require an evidentiary hearing and reasonable discovery, such as depositions, {p.2} document production, and interrogatories.” Opposition at 8. To the contrary, in light of the plaintiffs’ own allegations, there is no need for discovery or an evidentiary hearing here. 1 

Solely for purposes of the present motion to dismiss, we assume the truth of the facts as pleaded in the complaint. Therefore scope of employment presents a question of law. See Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995) {63kb.html}. Moreover, the Westfall Act confers on federal officers and employees a form of absolute immunity from suit. United States v. Smith, 499 U.S. 160, 163 (1991); Haddon, 68 F.3d at 1423 {63kb.html}. “One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991) (citation omitted)). For these reasons a government official is entitled to a pre-discovery resolution of any substantial claim to immunity from suit {p.3} presented by way of a Rule 12(b)(6) motion to dismiss. See Behrens v. Pelletier, 516 U.S. 299, 306-07 (1996).

Consistent with these principles, courts entertaining challenges to Westfall Act certifications have recognized that unnecessary discovery (and of course evidentiary hearings) should be avoided to the extent possible by considering first whether the plaintiffs allegations, if proven, would demonstrate conduct outside the scope of employment. See, e.g., Davric Marine Corp. v. United States Postal Serv., 238 F.3d 58, 66 (1st Cir. 2001) {44kb.html, 44kb.html}; Taboas v. Mlynczak, 149 F.3d 576, 581 (7th Cir. 1998) {28kb.html} (same). See also RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1143 (6th Cir. 1996) {67kb.html, 67kb.html} (“Where, as here, a plaintiff in his complaint pleads conduct within an individual’s scope of employment and merely alleges bad or personal motive, summary dismissal of the scope challenge is warranted.”). Because the complaint’s allegations show that Dr. Kissinger and Ambassador Helms acted in the scope of employment at the time of the events out of which this case arises, there is no need for discovery or an evidentiary hearing.

The plaintiffs’ second ground for challenging the Certification appears to be the conclusory assertion that “kidnapping and extrajudicial killing cannot be the kind of act duly employed officials within the Executive branch are employed to perform.” Opposition at 9. Yet the plaintiffs’ efforts to defeat Westfall Act immunity solely by reference to their own legal characterizations of the conduct at issue has no basis in law or policy. As the Court of Appeals has observed in a similar context, “if the scope of an official’s authority or line of duty were viewed as coextensive with the official’s lawful conduct, then immunity would be available only where it is not needed; in effect, the immunity doctrine would be ‘completely abrogate[d]’.” Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990) (quoting Martin v. D.C. Metropolitan {p.4} Police Dep’t, 812 F.2d 1425, 1429 (D.C. Cir. 1987) (quoting in turn Briggs v. Goodwin, 569 F.2d 10, 15 (D.C. Cir. 1977))). That is no less true when immunity is claimed under the Westfall Act. See, e.g., Johnson v. Carter, 983 F.2d 1316, 1323 (4th Cir. 1993). Contrary to the plaintiffs’ arguments, government officials do not act outside the scope of employment even assuming they have acted illegally. 2 

That is particularly true where, as here, a plaintiff asserts that Executive Branch officials carrying out the President’s orders in the area of national security have exceeded the scope of employment. As recent events illustrate, the exigencies of national self-defense require that the President have the widest possible discretion in performing his national security functions. That discretion, of necessity, cannot be circumscribed by the possibility that a court later will deem Executive Branch officials, including perhaps the President himself, to have violated “fundamental norms of international law,” and thereby subject them to ruinous personal damages liability. Plainly, an official carrying out the President’s instructions acts on behalf of the United States and within the scope of his employment. {p.5}

Putting aside the plaintiffs’ legal labels therefore and examining their factual allegations, it is abundantly clear that Dr. Kissinger and Ambassador Helms acted in the scope of employment. Under District of Columbia law:

[c]onduct of a servant is within the scope of employment if, but only if: [1] it is of the kind he is employed to perform; [2] it occurs substantially within the authorized time and space limits; [3] it is actuated, at least in part, by a purpose to serve the master; and [4] if force is intentionally used by the servant against another, the use of force is not unexpected by the master.

Haddon, 68 F.3d at 1423 {63kb.html} (quoting Restatement (Second) Agency § 228 (1957) {OCLC: 507609, LCCN: 58004270, WorldCat}). 3 

The plaintiffs focus exclusively on the first criterion, i.e., whether the conduct at issue is of the kind the defendant was employed to perform. See Opposition at 8. That first criterion is satisfied, however, whenever an employee’s conduct is “‘of the same general nature as that authorized’” or ‘incidental to the conduct authorized.’” Haddon, 68 F.3d at 1424 {63kb.html} (quoting Restatement (Second) Agency § 229 (1957) (emphasis added)).

According to the complaint, while employed as Senior Assistant to the President for National Security Affairs, Dr. Kissinger “designed, ordered, implemented and directed a program of overt and covert activities in Chile with known plotters of a coup d’etat against Chilean President-elect Dr. Salvador Allende, leading to the assassination of General Schneider in violation of domestic and international law.” Compl. ¶ 12. Similarly, the complaint alleges that while employed as the Director of Central Intelligence, Ambassador Helms allegedly “designed and instructed the CIA, the United States Government, and known coup plotters to play a direct role in the assassination of General Schneider, which was thought necessary to effectuate a {p.6} military coup d’etat in Chile.” Id. ¶ 13. These alleged actions of course were undertaken in response to the President’s orders. See id. ¶ 18. That the President’s senior national security advisor and the Director of Central Intelligence would follow the President’s orders and that they would be involved in developing plans for covert action directed at a foreign government is only to be expected. 4  Plainly, Dr. Kissinger’s and Ambassador Helms’ conduct as alleged in the complaint was of the same general nature as that authorized by their employer, and the plaintiffs have wholly failed to allege conduct outside the scope of employment.

Even if it could be said that the conduct at issue was not of the same general nature as that authorized, Dr. Kissinger and Ambassador Helms nevertheless acted in the scope of employment because the conduct at issue also clearly was incidental to authorized conduct. “[C]onduct is ‘incidental’ to an employee’s legitimate duties if it is ‘foreseeable’,” Haddon, 68 F.3d at 1424 {63kb.html} (citation omitted), and that means that the conduct is “‘a direct outgrowth of the employee’s instructions or job assignment.’” Id. (quoting Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. 1984) (citations omitted)). Here, according to the complaint, the President “ordered that the necessary steps be taken to prevent Dr. Allende from becoming President of {p.7} Chile,” and “instructed the CIA to ‘play a direct role in organizing a military coup d’etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” Compl. ¶ 18. Dr. Kissinger’s and Ambassador Helms’ alleged conduct assuredly was a “‘direct outgrowth of [their] instructions or job assignment,’” Haddon, 68 F.3d at 1424 {63kb.html} (citation omitted), and therefore in the scope of employment.

For these reasons, it is irrelevant that Dr. Kissinger and Ambassador Helms supposedly acted “without the knowledge, much less approval, of key members of the Executive branch and/or members of the Legislative branch.” Opposition at 9. Similarly irrelevant are the assertions that “the Director of the Central Intelligence Agency’s job description cannot include unfettered ability to order kidnappings without knowledge or consent of key governmental officials and outside the normal checks and balances that oversee covert operations,” Opposition at 9-10 (footnote omitted); or that Chilean coup plotters were told that the CIA would support a coup “in spite of ‘other policy guidance’ that they may receive from other branches of the U.S. government.” Opposition at 10 (citation omitted). As demonstrated above, the question is whether Dr. Kissinger’s and Ambassador Helms’ actions in carrying out the President’s orders either were authorized by, or incidental to, their employment, and not whether the plaintiff asserts them to be illegal or a prohibited means of carrying out their official responsibilities. “Indeed, [i]f the other [scope of employment] factors involved indicate that the forbidden conduct is merely the servant’s own way of accomplishing an authorized purpose, the master cannot escape responsibility no matter how specific, detailed and emphatic his orders may have {p.8} been to the contrary.” W. P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts, § 70 at 503 (1984) (footnote omitted). 5 

It appears beyond doubt from the facts alleged in the complaint that Dr. Kissinger and Ambassador Helms acted within the scope of their federal office or employment at the time of the events alleged. Accordingly, the United States properly is substituted in their place.

Political Question Doctrine

The plaintiffs appear to argue that “mere” tort claims such as theirs cannot raise a nonjusticiable political question. See Opposition at 12. Precedent teaches otherwise. Eminente v. Johnson, 361 F.2d 73 (D.C. Cir. 1966) (per curiam), held that a claim for property damage arising from United States military operations in Southeast Asia presented a non-justiciable political question. In Industria Panificadora, SA v. United States, 763 F.Supp. 1154, 1159-61 (D.D.C. 1991), aff’d on other grounds, 957 F.2d 886 (D.C. Cir. 1992), this Court found damages claims brought under both the Federal Tort Claims Act (“FTCA”) and the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), to entail non-justiciable political questions because those claims {p.9} arose from United States military officials’ alleged negligence in failing to keep order in Panama. In Chaser Shipping Corp. v. United States, 649 F.Supp. 736, 738-39 (S.D.N.Y. 1986), aff’d 819 F.2d 1129 (2d Cir. 1987), the court dismissed as posing a non-justiciable political question a suit brought under both the FTCA and the Suits in Admiralty Act. The plaintiff there sought damages arising from the United States’ mining of Nicaraguan harbors and alleged that “the Central Intelligence Agency (“CIA”), with the approval of the President, manufactured the mines and supervised and directed their placement, and that it carried out these acts in a negligent, malicious or wanton manner.” Id. at 737 (citation omitted).

That tort claims against the United States and its officials based on foreign policy and national security judgments raise non-justiciable political questions should be readily apparent. “Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292 (1981). See also Joo v. Japan {142kb.pdf}, 172 F.Supp. 2d 52, 65 (D.D.C. 2001) (“It is well-established that ‘[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — the ‘political’ departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision’” (quoting Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)). Yet “[s]o far as there is one central idea [in tort law] it would seem that it is that liability must be based upon conduct which is socially unreasonable.” Prosser & Keeton, § 2 at 6. Application of tort law principles to foreign and national security policy judgments therefore would entail ascertaining whether conduct in formulating and carrying out such policy was “socially unreasonable” under some tort law formulation. Thereby the judiciary essentially is asked to substitute its judgment as to what is reasonable in the foreign {p.10} and national security policy context for that of the Executive (to which the conduct of such policy is constitutionally committed, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).

Equally clear is the “lack of judicially discoverable and manageable standards for resolving” claims that the President’s and his advisors’ actions in carrying out foreign and national security policy were “socially unreasonable” in the tort sense. See Baker v. Carr, 369 U.S. 186, 217 (1962). Similarly, it is impossible to review such actions “without an initial policy determination of a kind clearly for nonjudicial discretion.” Id. Only by assessing for itself the national interest at stake and balancing that interest against the risk of harm to individuals that might result from the challenged Executive Branch action could a court decide whether the United States’ alleged actions toward Chile somehow were “reasonable” or not. The plaintiffs’ claims quite plainly implicate non-justiciable questions and therefore must be dismissed. 6 

“ The Court is not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority “to declare war.””

Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990)

The plaintiffs miss the point in arguing that this case does not relate to recognition of foreign governments or use of military force. See Opposition at 13, 16. Just as decisions whether to recognize foreign governments or employ military force implicate non-justiciable political questions, so do decisions to intervene through covert operations, which fall ¶

“in the gray area between formal diplomacy and military intervention * * * .” ¶

H. Kissinger, The White House Years, 658 (1979) {LCCN: 79090006}. See, e.g., Sanchez-Espinoza v. Reagan, 568 F.Supp. 596, 600 (D.D.C. 1983), aff’d on other grounds, 770 F.2d 202 (D.C. Cir. 1985); Chaser Shipping Corp., 649 F.Supp. at {p.11} 738-39. ¶

The President’s choice of means in attending to the national interest in this area is a political question, and the plaintiffs’ proposed distinction between overt military force and covert intervention (which sometimes involves the use of force) has no basis in law or common sense. Cf. Industria Panificadora, 763 F.Supp. at 1159-60 (“decisions pertaining to national security, such as whether and how to use military forces, are entrusted to the political branches” (emphasis added)).

In the end, the plaintiffs are wrong in their assertion that their claims do not put at issue United States foreign policy, see Opposition at 12, and that none of Baker’s six factors for identifying a political question apply, see id. at 15-16. The entire premise of the plaintiffs’ case appears to be that even the President of the United States may not authorize actions that can be characterized as “kidnapping” or “extra-judicial killing,” a broad assertion that assuredly implicates United States foreign policy. See, e.g., Bob Woodward, CIA Paid Afghans To Track Bin Laden; Team of 15 Recruits Operated Since 1998 {copy}, Wash. Post, Dec. 23, 2001, at A1 (reporting “[t]he creation of [an Afghan] tracking team [that] was part of a covert CIA operation to capture or kill [Osama] bin Laden launched first by the Clinton administration and continued under President Bush”). 7  {p.12}

Similarly, the plaintiffs are wrong in their broad assertion that the Court “is not asked to impose upon the Executive any duty of care regime.” Opposition at 17. For example, the complaint itself alleges that “Defendants never gave any instruction to leave General Schneider unharmed, which would have been both reasonable and necessary if they truly wished to prevent such harm * * * .” Compl. ¶ 30. This implies nothing less than that United States officials owe a duty of care to foreign government officials who may be adversely affected by United States foreign and national security policy. More broadly, no matter how the standards under which damages would be imposed here are to be described, the fact remains that there can be no assessment of liability without an antecedent judgment that the national interest did not justify the risk to Chilean citizens who might be harmed by the United States’ policy. While courts routinely make such judgments in fixing liability for harm arising from private parties’ transactions, to do so here necessarily would require an exercise of judgment as to what are appropriate means and ends in an area constitutionally committed to the other branches of government. The complaint presents a non-justiciable political question, and therefore should be dismissed. {p.13}

Absolute Immunity

A.  Westfall Act Immunity for Claims Under International Law and the Alien Tort Claims Act.

Despite the plain language of the Westfall Act and case authority recognizing it to bar claims brought against federal officials under the Alien Tort Claims Act and international law, see Alvarez-Machain v. United States, 266 F.3d 1045, 1053-54 (9th Cir. 2001) {64kb.pdf, 64kb.pdf} {superseded en banc, June 3 2003, 400kb.html} {reversed on other grounds June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}, the plaintiffs insist otherwise. According to the plaintiffs, “most courts addressing the issue have found the ATCA provides both jurisdiction and a private cause of action. It, therefore, necessarily satisfies the [28 U.S.C.] § 2679(b)(2)(B) exception and Defendants Kissinger and Helms are not immune from suit.” Opposition at 25. To the contrary, application of the Westfall Act’s exception turns not on whether a federal statute “provides both jurisdiction and a private cause of action,” but on whether the claim at issue is one “brought for a violation of a federal statute. See § 2679(b)(2)(B); Alvarez-Machain, 266 F.3d at 1053-54 {64kb.pdf, 64kb.pdf} {superseded en banc, June 3 2003, 400kb.html} {reversed on other grounds June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}.

Even assuming that § 1350 provides a private cause of action, but see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 811-16 (D.C. Cir. 1984) (Bork, J., concurring), the plaintiffs’ argument fails because it conflates the two distinct questions of whether a statute confers substantive rights, on the one hand, and whether a statute confers a cause of action to remedy a violation of substantive rights, on the other. As the text of the Westfall Act makes clear, immunity is available unless the claim at issue is one “which is [1] brought for a violation of a statute of the United States [2] under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). The plaintiffs’ argument meets only the second of these conditions while ignoring the first. Because § 1350 at most does nothing more than provide a {p.14} damages cause of action for the violation of rights conferred elsewhere (by the law of nations or a treaty of the United States) it cannot trigger the § 2679(b)(2)(B) exception to immunity. See Alvarez-Machain, 266 F.3d 1045, 1053-54 {64kb.pdf, 64kb.pdf} {superseded en banc, June 3 2003, 400kb.html} {reversed on other grounds June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. Accord Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980) (“we believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.”). Accordingly, Dr. Kissinger and Ambassador Helms are absolutely immune with respect to the plaintiffs’ ATCA and international law claims. 8 

B.  Absolute Immunity for District of Columbia Tort Claims.

The plaintiffs argue that no federal common law immunity bars their District of Columbia tort claims because “this case does not involve a ‘uniquely federal interest,’ but instead presents tort claims of the kind routinely reviewed by courts in the District of Columbia.” Opposition at 34 (footnote omitted). That the “liability of federal officials for actions taken in the course of their duty” implicates an area of unique federal interest is well-settled, however. Boyle v. United Technologies Corp., 487 U.S. 500, 505 (1988).

Similarly, the plaintiffs insist that a “‘uniquely federal interest’ in foreign policy is clearly not present in this case” because “holding the individual Defendants accountable under D.C. tort law for their ultra vires conduct in the foreign policy and national security arenas will neither create foreign policy (particularly insofar as the challenged conduct occurred over thirty years {p.15} ago) nor have any effect whatsoever, much less a negative effect, on the nation’s ability to speak with “one voice” in its foreign policy, or on its relations with other countries.” Opposition at 37 (footnote omitted). The flaw in this argument requires no extensive elaboration. As the plaintiffs see it, the means and ends of foreign and national security policy are fair game for litigation in state court once a plaintiff claims that the actions in question somehow were unlawful or beyond the defendant officials’ authority. That approach to immunity questions is long since foreclosed. See, e.g., Ramey, 915 F.2d at 734.

Moreover, contrary to the plaintiffs’ argument, a state judicial pronouncement of liability does indeed preclude the nation from speaking with one voice in foreign affairs. Such a decision would signal other nations that the Executive’s actions are not legitimate, and indeed, should be deterred in the future through a damages award to private litigants. Cf. Carlson v. Green, 446 U.S. 14, 21 (1980) (“It is almost axiomatic that the threat of damages has a deterrent effect.”). This potential for mischief (which directly implicates, but also goes far beyond, the need to “speak with one voice” in foreign affairs) is plain. Local tort law has no proper place here, and Dr. Kissinger and Ambassador Helms appropriately are accorded a federal common law absolute immunity in addition to the immunity available to them under the Westfall Act. 9  {p.16}

Torture Victims Protection Act Claim

A.  In Carrying Out the President’s Orders Dr. Kissinger and Ambassador Helms Did Not Act Under Color of Foreign Law.

The plaintiffs argue that “[a]ny dispute as to whether the acts alleged in the Complaint constitute an act ‘under actual or apparent authority, or color of law of any foreign nation’ is a material fact improper for resolution at this preliminary stage.” Opposition at 28. The plaintiffs cite no authority for their apparent notion that a court never may decide whether particular allegations satisfy the relevant legal standard. To the contrary, where the underlying facts are not disputed (as they are not for purposes of the present motion to dismiss), whether an official acted “under color of law” is indeed susceptible to judicial resolution on a motion to dismiss. See, e.g., Polk County v. Dodson, 454 U.S. 312, 324 (1981).

In this case, the complaint clearly alleges that “[k]ey United States policy makers opposed the prospect of Dr. Allende’s accession to the Chilean Presidency.” Compl. ¶ 16. Further, “President Nixon met with Defendant Kissinger, Defendant Helms and Attorney General John Mitchell, and ordered that the necessary steps be taken to prevent Dr. Allende from becoming President of Chile.” Id. ¶ 18. The complaint continues that the President “instructed the CIA to ‘play a direct role in organizing a military coup d’etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” Id. Moreover, “President Nixon expressed he was ‘not concerned’ about the ‘risks involved’, and authorized $10,000,000 in funds to effect a military coup, requiring a plan of action to be drafted within 48 hours.” Id. In light of these allegations, Dr. Kissinger and Ambassador Helms were not acting under color of Chilean law but {p.17} were acting were acting under color of United States law pursuant to the President’s direction. Hence, they did not act under color of foreign law such that they may be sued under the TVPA. 10 

Contrary to the plaintiffs’ bare assertion, this straight-forward reading of the “color of foreign law” requirement hardly is a “tenuous and unnatural interpretation of Congress’ intent in enacting TVPA.” Opposition at 29. Nothing in the text or legislative history of the Act indicates that Congress expected United States officials to act under color of another nation’s law simply because foreign officials are enlisted to cooperate in achieving United States policy objectives. The plaintiffs’ alternative is that United States officials be liable for any serious misconduct perpetrated by foreign citizens or entities with whom the United States, acting in its own national interest, deems it necessary to make common cause. Never, when embroiled in a foreign conflict, could the United States choose between the lesser of two evils. Any cooperative policy, under the plaintiffs’ “conspiracy” theory, see Opposition at 29, would render United States officials personally liable for any human rights abuses committed by allies in the course of hostilities. Cf. Walter Pincus & Stephen Mufson, Prisoners’ Fate, Treatment Not in U.S. Hands, Officials Say {copy}, Wash. Post, Nov. 30 2001, at A1 (noting that “[t]he handling of prisoners in Afghanistan and the role of U.S. military and intelligence personnel on the ground have become growing issues amid allegations of mistreatment and executions by [Afghan] captors.”). The TVPA simply does not bear so novel a reading.

The legislative history of the TVPA, moreover, reflects a concern exclusively with a lack of judicial remedies for torture and extra-judicial killing in those nations where such practices are {p.18} prevalent. See H. Rep. No. 102-367 at 3 (Nov. 21, 1991), reprinted in 1992 U.S.C.C.A.N. 84, 85. ¶

Torture Victim Protection Act of 1991: Report (to accompany H.R. 2092) (U.S. Congress 102-1, House Report No. 102-367, Judiciary Committee, November 25 1991, 7 pages, U.S. GPO 1991) {SuDoc: Y 1.1/8:102-367/PT.1, Serial Set: 14083, CIS: 91 H523-18, OCLC: 25532129, GPOCat, LL: paper, microfiche, DL, WorldCat}, reprinted, 1992 U.S.C.C.A.N. 84CJHjr

The plaintiffs do not suggest that Congress thought ours to be one such nation. 11  The text and legislative history of the TVPA concern themselves with torture and extra-judicial killing committed by officials of foreign regimes, and no court ever has held what the plaintiffs ask this Court to hold here — that United States officials carrying out the President’s orders thereby act “under color of foreign law” and become liable for the actions of foreign nationals whom our government has deemed it necessary to support.

B.  The TVPA Cannot be Applied Retroactively to United States Officials.

Putting aside the color of foreign law requirement, the plaintiffs also fail to demonstrate how TVPA was intended to apply retroactively to United States’ officials. According to the plaintiffs, “it is well-established that the TVPA can be applied retroactively because the statute does not ‘impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’” Opposition at 32 (quoting Estate of Cabello v. Fernandez-Larios {109kb.html}, 157 F.Supp.2d 1345, 1362 (S.D. Fla. 2001)). Central to the plaintiffs’ argument is the proposition that the conduct prohibited by the TVPA already was banned under international law. See id. {p.19}

The plaintiffs’ argument ignores that under the 1988 Westfall Act United States officials are immune from suit under the international law norms that the plaintiffs rely upon for the proposition that “the violations alleged herein involve an area of international law in which standards and norms have long been well-defined.” Opposition at 33. Not one of the cases the plaintiffs cite for the latter proposition involved a suit against United States officials. 12  The issue for retroactivity purposes is not whether some legal norms “have long been defined,” but whether the particular statute at issue “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Because the 1992 TVPA would impose liability where prior law, including the 1988 Westfall Act, would impose none, the TVPA would have retroactive effect if applied in these circumstances. There being nothing in the text or legislative history of the Act requiring that result, the TVPA does not apply here. See generally Gersman v. Group Health Ass’n, Inc., 975 F.2d 886, 897-98 (D.C. Cir. 1992).

C.  The TVPA Was Not Clearly Established Law In 1970.

The plaintiffs do not contest that later-enacted statutes generally do not qualify as “clearly established” law for qualified immunity purposes. Instead, they seek shelter in generalities — “[K]idnapping and extrajudicial killing are not and cannot be among the ‘discretionary functions’ government officials are entitled to perform,” and “do violate clearly established rights * * * .” {p.20} Opposition at 20. Such generalities do nothing to solve the elementary problem that the particular legal norms on which the plaintiffs rely — the TVPA’s particular definitions of “torture” and “extra-judicial killing” — were not clearly established in 1970 and could not have been apparent to a reasonable official over twenty years before their enactment. See, e.g., Werner v. McCotter, 49 F.3d 1476, 1481 (10th Cir. 1995) (recognizing qualified immunity for claim under later-enacted statute). See generally Anderson v. Creighton, 483 U.S. 635, 639 (1987). Second, even where general principles are “clearly established,” plaintiffs are not entitled to evade a government official’s qualified immunity simply by “alleging extremely abstract rights.” Anderson, 483 U.S. at 639. In other words, the inquiry whether a right was clearly established “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, {533 U.S. 194,} 121 S. Ct. 2151, 2156 (2000). An official forfeits his immunity only if it would be apparent to a reasonable official under the circumstances that “what he is doing” violates established norms. Anderson, 483 U.S. at 640.

In this instance, the plaintiffs allege in their complaint that Dr. Kissinger and Ambassador Helms were advised that Chilean dissidents planned “‘to kidnap General Schneider ‘within 48 hours’ as part of a coup plan.” Compl. ¶ 29. The kidnapping attempt instead resulted in General Schneider’s death from a gunshot wound. Id. ¶ 40. That General Schneider’s death in a botched kidnapping attempt amounts to “torture” or a “deliberated killing” within the TVPA’s particular definitions simply would not have been apparent to a reasonable official in the circumstances alleged. See TVPA § 3(b), 102 Stat. at 73-74. Putting aside the TVPA’s definitions, moreover, the circumstances of General Schneider’s death certainly do not resemble “torture” or “deliberated killing” in any ordinary sense of those words. See, e.g., Black’s Law Dictionary at {p.21} 1490 (6th ed. 1990) (defining torture as “[t]o inflict intense pain to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure.” (emphasis added)). Finally, the plaintiffs do not seriously dispute that no official reasonably could anticipate, in 1970 or even today, that carrying out the President’s orders as described in the complaint would cast him in damages for acting under color of foreign law (as the TVPA requires).

Sovereign Immunity

Relying upon the dissenting opinion in Princz v. Federal Republic of Germany, 26 F.3d 1166, 1178 (D.C. Cir. 1994) (Wald, J., dissenting), the plaintiffs appear to argue for an implied waiver of sovereign immunity for what they characterize as alleged violations of international law. Putting aside that the Princz majority refused to do exactly what the plaintiffs urge here, the plaintiffs overlook that the implied waiver theory was a colorable argument in Princz only because the Foreign Sovereign Immunities Act permits finding implied waivers of foreign states’ immunity. See 28 U.S.C. § 1605(a)(1); Princz, 26 F.3d at 1173. Nothing in the Federal Tort Claims Act or apparently any other federal statute provides a comparable basis for finding an implied waiver of the United States’ sovereign immunity for tort or international law-based damages claims. See generally Lane v. Pena, 518 U.S. 187, 192 (1996); Floyd v. District of Columbia, 129 F.3d 152, 156 (D.C. Cir. 1997) {38kb.html, 18 kb txt}.

The plaintiffs also assert that “the legislative history of the TVPA * * * demonstrates an intent to abolish notions of sovereign immunity for harms such as torture.” Opposition at 39. Here again the plaintiffs fail to note that the abrogation of immunity to which they are referring is contained in the Foreign Sovereign Immunities Act and applies only to a foreign state {p.22} ”designated as a state sponsor of terrorism” under statutory schemes not relevant here. See 28 U.S.C. § 1607(a)(7)(B). See also H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991), reprinted in 1992 U.S.C.C.AN. 84, 87. 13 

The plaintiffs assert that “the United States’ response to the events of September 11th belies any claim that governments may not be held accountable for violations of jus cogens norms committed by persons harbored and/or aided by the sovereign.” Opposition at 39-40. If anything, the United States’ response to the events of September 11, 2001, illustrates that the President and his advisors must be free to attend to the national security without concern that they may be forced to pay damages for alleged violations of domestic and international law. Indeed, a more useful analogy than plaintiffs’ would be a suit by the family of a foreign government official incidentally killed as the result of a failed attempt by the United States to destabilize a hostile regime by covertly arming its internal opponents, or by engaging in a joint military campaign with such internal opponents. The plaintiffs in no way indicate why such a case would be less cognizable than their own. Indeed, under the plaintiffs’ apparent theories, United States officials — including apparently the President himself, see, e.g., Opposition at 18 — would be personally liable for substantial damages to the family of a Taliban or al Qaeda fighter — perhaps even to the family of Osama bin Laden himself — tortured or killed by indigenous Afghan forces fighting on the side of the United States and its allies. {p.23}

The plaintiffs also muse that “[i]t is doubtful that a World Trade Center decedents’ survivor would be barred from collecting damages from the Taliban related to the harms for which it was in part responsible. Comity demands, therefore, that the United States upholds this principle of just recompense for human rights violations wherever they may occur.” Opposition at 40. There is no equivalence between the United States’ alleged efforts to prevent a certain regime from taking power in Chile and the September 11th hijackings of four civilian airliners and their use to attack the World Trade Center and the Pentagon. That the United States makes available a judicial remedy against certain state sponsors of terrorism, see 28 U.S.C. § 1605(a)(7), hardly means that the United States must make available against itself a judicial remedy for every asserted violation of international law. Indeed, the United States does not even make available a judicial remedy against a foreign state merely because it is alleged to have violated international law. See, e.g., Argentine Republic v. Amerada-Hess Shipping Corp., 488 U.S. 428, 436 (1989); Princz, 26 F.3d at 1174.

Similarly, even on the plaintiffs’ own allegations there is no similarity between this case and the deliberate assassination at issue in Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980), which, moreover, involved no question of United States foreign or national security policy. As Judge Harold Greene once observed, “[t]here is not the slightest similarity between the crimes committed under the aegis of a violent dictatorship and the implementation of laws adopted under a system of government which offers free elections, freedom of expression, and an independent judiciary as safeguards against excesses and as a guarantee of the ultimate rule of a sovereign citizenry.” Haring v. Blumenthal, 471 F.Supp. 1172, 1178 n.15 (D.D.C. 1979). The facts of this case similarly will not bear the plaintiffs’ frequent invocation of {p.24} the criminal law. Cf. id. (“debates and dialogues on public issues have become so debased in recent years that such terms as genocide, war crime, crimes against humanity, and the like are bandied about with considerable abandon in connection with almost every conceivable controversial issue of public policy”).


For the foregoing reasons, as well as the reasons set forth in our Memorandum of Points and Authorities, the Defendants’ Motion to Dismiss should be granted.

Respectfully submitted,

Robert D. McCallum, Jr.
Assistant Attorney General, Civil Division

Roscoe C. Howard, Jr.
United States Attorney

John Lodge Euler
Acting Director, Torts Branch, Civil Division

R. Joseph Sher
Senior Trial Counsel, Torts Branch, Civil Division


Signature: Richard Montague


Richard Montague
Trial Attorney
Constitutional & Specialized Tort Litigation Staff
Torts Branch, Civil Division
Department of Justice
Box 7146 Washington, D.C. 20044

Phone: (202) 616-4158
Facsimile: (202) 616-4314

Attorneys for the United States of America,
Henry A. Kissinger and Richard M. Helms

Dated: January 31, 2002 {p.25}


Certificate of Service

I hereby certify that on January 31, 2002, I served a true copy of the foregoing Reply Memorandum by facsimile and by first class mail, postage pre-paid, addressed to the plaintiffs’ counsel as follows:

Michael E. Tigar, Esq.
1155 Connecticut Avenue, NW, Suite 400
Washington, D.C. 20036


Signature: Richard Montague


Richard Montague


Each footnote appears entirely on the same page with its text reference, except where an embedded page reference denotes a carryover to the foot of the next page (n.7).  CJHjr

 1  Because this case is before the Court on a motion to dismiss, the plaintiffs’ frequent claims that fact disputes somehow preclude dismissal, e.g., Opposition at 2, 8, 21, 28, are both incorrect and irrelevant. Because the case can be disposed of entirely on the basis of the plaintiffs’ own allegations, moreover, discovery is not necessary. See Moore v. United States {33kb.html}, 213 F.3d 705, 710 n.3 (D.C. Cir.), cert. denied, 531 U.S. 898 (2000). Were the case to proceed past the pleading stage, however, we would vigorously dispute the complaint’s allegations. The plaintiffs apparently wish to litigate thirty-year old facts to a conclusion different from that reached by the Church Committee. The Church Committee concluded that on September 15, 1970, President Nixon ordered an effort to prevent Allende from becoming President of Chile, but that on October 15, 1970, seven days prior to the attempted kidnapping that led to General Schneider’s death, Dr. Kissinger and other officials decided to abandon, at least temporarily, any support or encouragement of a coup led by retired Chilean General Roberto Viaux. See Church Committee Report at 242 {68kb.html/gif}. ¶

Alleged Assassination Plots Involving Foreign Leaders, pages 225-254 (U.S. Congress 94-1, Senate Report No. 94-465, Nov. 20 1975, Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 13+349 pages) {SuDoc: 94-1:S.RP.465, Serial Set: 13098-8, CIS: 75 S963-1, LCCN: 75603538, DL, WorldCat}  CJHjr

The Committee also found that, when advised that the United States’ had withdrawn its support, these Chilean plotters “responded that it did not really matter because they had decided to proceed in any case.” Id. at 243 {68kb.html/gif}. The Committee further concluded that “there is no evidence of a plan to kill Schneider or that the United States officials specifically anticipated that Schneider would be shot during the abduction.” Id. at 5 {72kb.html/gif}. Moreover, notwithstanding the plaintiffs’ mis-characterization of its contents (see Opposition at 7, 12) the Affidavit of Peter Kornbluh submitted by the plaintiffs does not contradict the Church Committee’s central conclusions.

 2  The plaintiffs essentially claim that alleged “kidnapping” and “extrajudicial killing” cannot be in the scope of employment per se, but overlook that the same could be said of numerous instances of grave misconduct nevertheless found to be in the scope of employment under the relevant District of Columbia law (see infra note 3). See, e.g., Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir. 1976) (holding that a mattress deliveryman acted in the scope of employment when assaulting and raping a customer); Howard University v. Best, 484 A.2d 958, 987 (D.C. 1984) (holding that a dean acted in the scope of employment when sexually harassing a faculty member); Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981) (holding that laundry employee acted in the scope of employment when shooting a customer in a dispute over missing shirts). If assaults, rapes and shootings can be in the scope of employment, then the President’s senior national security advisor and the Director of Central Intelligence assuredly act in the scope of employment when carrying out the President’s orders to take actions to prevent the accession to power of a foreign government the President deems inimical to the United States’ interests.

 3  For purposes of the Westfall Act, scope of employment is determined by reference to local respondeat superior law. See id.

 4  See, e.g., Executive Order No. 11905 {copy}, 41 Fed. Reg. 7703 (Feb. 18, 1976) (1976 WL 21308 (Pres)), which provides that the Director of Central Intelligence and the Assistant to the President for National Security Affairs will sit on an “Operations Advisory Group,” id. § 3(c)(1), with responsibility to consider and develop policy recommendations to the President “on each special activity in support of national foreign policy objectives.” Id. § 3(c)(2). “Special activities” are defined as “activities in support of national foreign policy objectives * * * , other than the collection and production of intelligence and related support functions, designed to further official United States programs and policies abroad which are planned and executed so that the role of the United States Government is not apparent or publicly acknowledged.” Id. § 2(c). See also 50 U.S.C. § 402(h)(1)(2)(D) {1988} (making the Assistant to the President for National Security Affairs a member of the National Security Council’s Committee on Foreign Intelligence).

 5  At various points in their opposition, the plaintiffs assert that Dr. Kissinger and Ambassador Helms acted “ultra vires” and therefore are not immune from suit. See, e.g., Opposition at 8, 38. The cases on which the plaintiffs appear to rely for their “ultra vires” theory are cases in which foreign government officials acted as private individuals rather than as an arm of their respective sovereigns entitled to invoke the sovereign’s own defenses in a United States court. See, e.g., Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir. 1962) (holding that the act of state doctrine could not be invoked by a government official who acted for “personal or private motives” and not “in an official capacity”). The plaintiffs purport to sue Dr. Kissinger and Ambassador Helms in an individual capacity, but they do not deny that Dr. Kissinger and Ambassador Helms acted in an official capacity at the President’s direction. Therefore, what is at issue here are the immunity defenses available to government officials sued in an individual capacity for official acts. See generally Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). Cases such as Jimenez and their “ultra vires” doctrine are irrelevant to those issues.

 6  The plaintiffs’ reliance upon Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 {copy, justia, altlaw} (2d Cir. 1991), is misplaced. Klinghoffer was not a suit against United States officials; did not put at issue any aspect of United States foreign policy; and it involved only the factual question whether the Palestine Liberation Organization participated in the hijacking of a cruise ship. See id. at 49-50.

 7  The only “judicially discoverable and manageable” standards for adjudication to which the plaintiffs point are those of D.C. Code § 16-2701, governing wrongful death. See Opposition at 15. As explained above, ordinary tort law principles do not provide judicially discoverable and manageable standards for evaluating the Executive’s conduct of foreign and national security policy. The same is true for the various treaties and other international law provisions (none of which is self-executing) that the plaintiffs so insistently invoke. Even assuming treaty or international law was violated, the power of the President to disregard international law in the performance of his constitutional functions is well-established. See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446, 1454 (11th Cir. 1986); United States v. Berrigan, 283 F.Supp. 336, 342 (D. Md. 1968) (“Whether the actions by the executive and legislative branches in utilizing our armed {p.12} forces are in accord with international law is a question which necessarily must be left to the elected representatives of the people and not the judiciary. This is so even if the government’s actions are contrary to valid treaties to which the government is a signatory.”); Restatement (Third) Foreign Relations Law of the United States, § 115, Reporters Note 3 {ISBN: 0314301380, LCCN: 86020665, WorldCat} (“There is authority for the view that the President has the power, when acting within his constitutional authority, to disregard a rule of international law or an agreement of the United States.”); L. Henkin, Foreign Affairs and the Constitution, at 221-22 (1972) (“[T]he courts will give effect to acts within the constitutional powers of the political branches without regard to international law.”). Cf. Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988) (“Congress’ violation of a treaty is not cognizable in domestic court.”).

 8  In observing that United States v. Smith, 499 U.S. 160 (1991), involved a different statute (the Gonzales Act, 10 U.S.C. § 1089) and not the ATCA, the plaintiffs identify a distinction without a difference. See Opposition at 25. Smith makes clear that a statute must confer both substantive rights as well as a cause of action before a claim brought under it triggers the Westfall Act exception. See 499 U.S. at 173-74. Alvarez-Machain, which applied Smith’s methodology to conclude that the ATCA itself is not such a statute triggering the Westfall Act exception, the plaintiffs discuss not at all.

 9  As demonstrated in our opening memorandum, Dr. Kissinger and Ambassador Helms also are entitled under Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982), to absolute immunity from all claims at issue here. The plaintiffs’ contrary arguments are unpersuasive. See Opposition at 18-21. Mitchell v. Forsyth, 472 U.S. 511 (1985), rejected only a “blanket” authorization of absolute immunity for officials performing national security functions, see id. at 521, and did not address the kinds of functions or claims at issue here. Because absolute immunity is function-based, moreover, the plaintiffs’ argument that Dr. Kissinger and Ambassador Helms were not cabinet-rank officials is irrelevant. See id.

 10  Indeed, there is substantial room for doubt that the Chilean coup plotters acted under color of their own nation’s law. Cf. Polk County, 454 U.S. at 318 (public defenders do not act under color of law because they act independent of state control).

 11  The plaintiffs, moreover, are not correct in suggesting (Opposition at 30-31) that the United States is in violation of its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; 23 I.L.M. 1027 (entered into force Nov. 20, 1994), if the TVPA remedy is not available against United States officials. ¶

1465 U.N.T.S. 85 (Dec. 10 1984, June 26 1987) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 100-20; President transmitted: May 20 1988 (PPPUS, 1988-89) {SuDoc: AE 2.114:988-89/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Treaty Document No. 100-20 (May 23 1988) {SuDoc: Y 1.1/4:100-20, Serial Set: 13857, CIS: 88 S385-11}; Senate Hearing 101-718 (January 30 1990) {SuDoc: Y 4.F 76/2:S.Hrg.101-718, CIS: 90 S381-15, LCCN: 90601736}; Senate Executive Report No. 101-30 (August 30 1990) {SuDoc: Y 1.1/6:101-30, Serial Set: 13983, CIS: 90 S384-9}; Senate consent: Oct. 27 1990, 136 Cong. Rec. S17486-17492 (daily edition 136/150) {SuDoc: X/A.101/2:136/150, ISSN: 0363-7239, LCCN: 80646573, DL, WorldCat}; U.S. ratified, Oct. 21 1994, effective Nov. 20 1994, 1830 U.N.T.S. 320, accord, T.I.F. {202kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604}, contra, Nov. 10 1994, 22 C.F.R. § 95.1(a) {5 kb txt; 32kb.pdf, DL}CJHjr

Cf. Whitley v. Albers, 475 U.S. 312, 319 (1986) (“‘[T]he unnecessary and wanton infliction of pain * * * constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’” (citation omitted)). See generally 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

 12  That is especially true of Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996) {43kb.html, 56kb.html}, which noted the possibility that the TVPA might have retroactive effect if applied to United States officials, but declined to reach the issue because the defendant sued under the TVPA in that case was not a United States official. See id. at 702-03.

 13  The plaintiffs do not argue that they completed the FTCA administrative claim procedure (a jurisdictional prerequisite to filing suit, see 28 U.S.C. § 2675(a)) prior to instituting this action. Instead, they ask the Court to deem the United States’ motion to dismiss as a functional denial of their administrative claim. See Opposition at 1. McNeil v. United States, 508 U.S. 106, 110-113 (1993), forecloses that possibility. See also Odin v. United States, 656 F.2d 798, 801-02 (D.C. Cir. 1981).


Source: Photocopy of a duplicate original (the Court’s file copy). Omitted: Table of Contents and Table of Cases and Authorities (pages i-v).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, box p.10, comment p.11.

This case: Schneider v. Kissinger, complaint filed, Sept. 10 2001, refused to adjudicate, 310 F. Supp. 2d 251 (D.D.C., No. 01-CV-01902, March 30 2004), affirmed refusal to adjudicate, 412 F.3d 190 {justia, 64kb.pdf, 64kb.pdf} (D.C. Cir., No. 04-5199, June 28 2005), refused to review refusal to adjudicate, certiorari denied, 547 U.S. __ (U.S., No. 05-743, April 17 2006).

Previous: Plaintiffs’ Opposition to DoJ (initial) Motion to Dismiss (Dec. 17 2001).

Next: Court’s Order denying access to Kissinger Transcripts (Aug. 30 2002).

Commentary: The murder of René Schneider.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.


Posted May 18 2003. Updated March 22 2008.


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