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Full-text: December 12 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






Civ. No. 01-1902 (HHK)

Filed, Dec 12 2002, Nancy Mayer Whittington, Clerk U.S. District Court


 )
Rene Schneider, et al.,)
Plaintiffs,)
)
v.)
)
Henry A. Kissinger, et al.,)
Defendants.)
 )

Defendants' Renewed Motion to Dismiss

The defendants, the United States of America and Henry A. Kissinger, hereby renew their motion to dismiss this action for lack of subject matter jurisdiction and because the complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1), (6). A memorandum of points and authorities has been submitted along with this motion and a proposed order tendered for the court’s convenience.

Respectfully submitted,

{Signatures identical to those below}

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

Dated: December 12, 2002

______________________


Memorandum of Points and Authorities in Support of Defendants' Renewed Motion to Dismiss

As set forth in our Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss, the plaintiffs in this action are citizens of Chile who seek damages allegedly resulting from the death of their father, General Rene Schneider, the former Commander-in-Chief of the Chilean Army. A personal representative of General Schneider’s estate also is a plaintiff. On November 9, 2001, we moved on behalf of the defendants, the United States of America, Dr. Henry A. Kissinger and former Director of Central Intelligence Richard M. Helms (since deceased), 1  to dismiss the action for want of subject matter jurisdiction and failure of the complaint to state a claim upon which relief can be granted. The plaintiffs opposed that motion. {p.2}

The motion to dismiss has been under submission since January 31, 2002. Eleven months later, however, on November 12, 2002, the plaintiffs filed an amended complaint. The amended complaint alleges the same events and legal theories as did the initial complaint. Apart from that, it omits Ambassador Helms as a defendant, and it alleges that the plaintiffs have completed the administrative claims process that is a prerequisite to suing the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(2); 2671-2680 (2000) (“FTCA”). See 28 U.S.C. § 2675(a). Accordingly, we hereby renew the motion to dismiss filed on behalf of the United States and Dr. Kissinger, and for the reasons set forth in our Memorandum of Points and Authorities and our Reply Memorandum filed in support of that motion to dismiss, this action should be dismissed.

Discussion

The issues presented in this case have been thoroughly briefed by the parties in connection with the motion to dismiss that has been under submission for the past eleven months, and the Court may proceed to resolve those issues notwithstanding the recently-filed amended complaint. As Professors Wright and Miller explain, “defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending. If some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the {p.3} amended pleading. To hold otherwise would be to exalt form over substance.” 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 1476 at 558 (1990). Because the amended complaint seeks to impose liability based on the same events and theories of recovery as did the initial complaint, the Court may proceed to resolve the pending motion to dismiss. 2 

Although the plaintiffs now allege in the amended complaint that they now have completed the FTCA’s administrative claims process, see Amended Complaint ¶ 9, that allegation, even were it true, does not solve the fundamental deficiencies in the plaintiffs’ theories of recovery. Moreover, the amended complaint does not relate back for purposes of FTCA jurisdiction, and so it fails to cure even that defect. See McNeil v. United States, 508 U.S. 106, 110-113 (1993); Odin v. United States, 656 F.2d 798, 801-02 (D.C. Cir. 1981). See also Defendants’ Reply Memorandum at 22 n.13 (addressing this point).

The plaintiffs also have filed a “Notice to the Court of Supplemental Authority” (hereinafter “Notice”). In their notice, the plaintiffs cite John Doe I v. Unocal Corp. {356kb.pdf}, No. 00-5603 (9th Cir. Sept. 18, 2002) (2002 WL 31063976), as “support[ing] propositions set forth in Plaintiffs’ Consolidated Opposition to {p.4} Defendants’ Motion to Dismiss and Cross-Motion to Strike Certification of Scope of Employment, filed on December 17, 2001.” Notice at 1. According to the plaintiffs, “the opinion soundly supports Plaintiffs’ arguments that the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), provides jurisdiction and a cause of action for claims that constitute violations of jus cogens norms, and that torture and murder are violations of jus cogens norms.” Notice at 1 (citing Plaintiffs’ Opposition Memorandum at 24).

While torture and murder in some circumstances can amount to jus cogens violations of international law, see Unocal {356kb.pdf}, slip op. at *8, the plaintiffs have not alleged violations of jus cogens norms of international law and the events at issue in this case cannot meaningfully be described as “torture and murder.” In all events, the plaintiffs previously raised these points in their Opposition. As demonstrated in our Memorandum of Points and Authorities and Reply Memorandum filed in support of our motion to dismiss, the claims in this case are non-justiciable and, in any event, Congress has not seen fit to make the United States or high-ranking Executive Branch officials amenable to civil damages suits for alleged international law violations. 3  {p.5}

Conclusion

For the foregoing reasons, as well as the reasons set forth in our Memorandum of Points and Authorities and our Reply Memorandum filed in support of the United States’ and Dr. Kissinger’s motion to dismiss, this action should be dismissed.

Respectfully submitted,

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

Roscoe C. Howard, Jr.
United States Attorney

Helene M. Goldberg
Director, Torts Branch, Civil Division

R. Joseph Sher
Senior Trial Counsel, Torts Branch, Civil Division {p.6}


Signature: Richard Montague

{Signature}

Richard Montague
Senior 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,
and Henry A. Kissinger

Dated: December 12, 2002 {p.7}

______________________

Certificate of Service

I hereby certify that on December 12, 2002, I served a true copy of the foregoing Defendants’ Renewed Motion to Dismiss by both facsimile and first class mail, postage pre-paid, addressed to the plaintiffs’ counsel as follows:

Michael E. Tigar, Esq.
1025 Connecticut Avenue, NW, Suite 1012
Washington, D.C. 20036


Signature: Richard Montague

{Signature}

Richard Montague

Footnotes

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.3).  CJHjr

 1  The plaintiffs have not named Ambassador Helms in their amended complaint, and accordingly, only the United States and Dr. Kissinger remain as defendants, cf. Fed. R. Civ. P. 10(a).

 2  This apparently is the plaintiffs’ view as well, given that at the same time they filed their amended complaint they filed a Notice to the Court of Supplemental Authority (hereinafter “Notice”) regarding an argument made in their Consolidated Opposition to the pending motion to dismiss. See Notice at 1.

 3  In support of our motion to dismiss, we relied upon Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045, 1053-54 (9th Cir. 2001) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}, which held that the immunity conferred by 28 U.S.C. § 2679(b)(1) bars claims against United States officials based on the Alien Tort Claims Act, 28 U.S.C. § 1350, and international law, an issue the parties have thoroughly briefed in connection with the motion to dismiss. Since then, the Alvarez-Machain opinion was withdrawn after the Court of Appeals for the {p.5} Ninth Circuit granted the United States’ petition for rehearing en banc, which raised different issues. See Alvarez-Machain v. United States, 284 F.3d 1039 (9th Cir. 2002) (order {6kb.pdf}). Alvarez-Machain nevertheless remains persuasive authority on the application of § 2679(b)(1) to claims such as the plaintiffs bring here. Even were that not so, for the reasons set forth in our Memorandum of Points and Authorities and our Reply Memorandum, § 2679(b)(1) bars the plaintiffs’ claims in this case and does so notwithstanding the statutory exception to immunity for a claim “which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). The ATCA is not itself a statute that United States officials can “violate.”

 

Source: Photocopy of a duplicate original (the Court’s file copy).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}.

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: Court’s Order (Dec. 4 2002) enlarging time and establishing briefing schedule.

Next: Plaintiffs’ Opposition to DoJ Renewed Motion to Dismiss (Jan. 17 2003).

Commentary: The murder of René Schneider.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted May 11 2003. Updated March 6 2008.

http://homepage.ntlworld.com/jksonc/docs/schneider-d27.html

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