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Full-text: January 17 2003 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

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

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

Introduction

Plaintiffs respectfully request this Court to deny Defendants’ Renewed Motion to Dismiss. For the reasons set forth in this Memorandum, as well as in Plaintiffs’ Consolidated Opposition to Defendants’ Motion to Dismiss and Cross-Motion to Strike Certification of Scope of Employment (“Pls.’ Consolidated Opp’n”). The Amended Complaint establishes judicially cognizable claims and subject matter jurisdiction and presents facts constituting violations of jus cogens norms and customary international law. 1 

First, Plaintiffs have properly amended the Complaint to include claims against the U.S. government under the Federal Tort Claims Act, 28 U.S.C. § 2671-2680 (2000) (“FTCA”). See 28 U.S.C. § 2401(b) and 2675(a). Second, the Amended Complaint seeks declaratory relief against Defendant Kissinger in his individual capacity and against the United States as authorized under the express waiver of sovereign immunity stated in the Administrative Procedure Act, 5 U.S.C. § 702 (2000) (“APA”). Third, Plaintiffs strongly challenge Defendants’ mischaracterization of the holding in Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045 (9th Cir. 2001), reh’g granted {6kb.pdf}, 284 F.3d 1039 (9th Cir. 2002) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}, regarding the applicability of international law to U.S. officials and the U.S. government. Fourth, Plaintiffs further challenge Defendants’ statement that “the events at issue in this case cannot meaningfully be described as ‘torture and murder.’” Defs.’ Renewed Mot. to Dismiss at 4 (“Defs.’ Renewed Mot.”). Additionally, Defendants’ assertion raises a question of material fact that is improper for resolution at this procedural hour. Finally, contrary to Defendants’ allegation in their Renewed Motion to Dismiss, Plaintiffs have indeed alleged jus cogens violations of international law. {p.2}

Statement of the Case

In 1970, Defendants Kissinger and the United States Government provided knowing practical assistance and encouragement to armed coup plotters in order to kidnap General René Schneider, father of Plaintiffs René and Raúl Schneider. On October 25, 1970, General René Schneider died as a result of gunshot wounds inflicted with the weapons provided by the Defendants. Defendants knew or should have known that their acts and omissions would result in the death of General Schneider.

Procedural History

On September 10, 2001, based on the facts recently disclosed by the United States in the Report on CIA Activities in Chile (“Hinchey Report”), September 18, 2000, available at http://www. foia.state.gov/Reports/HincheyReport.htm (77kb.html), Plaintiffs filed suit against Defendants Henry Kissinger, Richard McGarrah Helms and the United States for the torture and murder of General René Schneider. Jurisdiction was based upon, inter alia, the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), and the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) {28 U.S.C. § 1350, note} (“TVPA”). The claims in the original Complaint were made against Henry Kissinger in his individual and official capacities, Richard McGarrah Helms in his individual and official capacities, and against the United States government. 2  On November 9, 2001, the United States filed a motion to dismiss on behalf of all defendants. Plaintiffs filed a Consolidated Opposition to the Motion to Dismiss and Cross-Motion to Strike Certification of Defendants Kissinger and Helms on December 17, 2001. The United States filed its reply on January {p.3} 31, 2002. On November 12, 2002, Plaintiffs filed the Amended Complaint to include, inter alia, claims brought under the FTCA, and to seek declaratory relief. 3  Prior to filing the Amended Complaint, Plaintiffs submitted administrative claims to the Department of State and Central Intelligence Agency (“CIA”) to notify them of Plaintiffs’ allegations of wrongful conduct by United States employees, as required by 28 U.S.C. § 2675(a). Plaintiffs waited six months, as required by § 2675(a), for formal disposition of these claims before filing the Amended Complaint that includes claims based upon the FTCA.

Argument

I.
Plaintiffs Have Complied with the Procedural Requirements Necessary to Establish Jurisdiction Under the FTCA.

Plaintiffs’ Amended Complaint alleges claims against the United States under the FTCA for the wrongful acts committed by Defendant Kissinger. Plaintiffs allege these FTCA claims in the event that the Court holds that Defendant Kissinger acted within the scope of his employment. 4  Plaintiffs’ claims are timely according to the requirements of 28 U.S.C. § 2401(b) and 2675(a). Pursuant to § 2401(b), Plaintiffs filed administrative claims “within two years after such claim accrue[d].” 5  Plaintiffs did not receive “by certified or registered mail ... notice of final denial of the claim” and therefore were not {p.4} required to file suit “within six months after the date of mailing” of such denial. 28 U.S.C. § 2401(b).

Defendants cite McNeil v. United States, 508 U.S. 106, 110-113 (1993), for the proposition that the Amended Complaint must relate back for purposes of FTCA jurisdiction. See Defs.’ Renewed Mot. at 3. McNeil is inapposite because, unlike the present case, McNeil dealt with a plaintiff who failed to file a proper FTCA claim within six months after the formal denial of an administrative claim, as required by § 2401(b). In the present case, neither agency issued a formal denial of the administrative claims, so the statute of limitations specified in § 2401(b) does not apply. McNeil is further inapplicable insofar as Plaintiffs’ original claims were not based upon FTCA jurisdiction. Furthermore, neither the lawsuit nor the administrative claim is invalidated by simultaneous filing where the original lawsuit is based on inter alia, ultra vires conduct, not FTCA jurisdiction. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995) (holding that the question of scope of employment and certification is subject to judicial review even where the plaintiff has not exhausted administrative remedies and the United States has certified the employee’s conduct); see Pls.’ Consolidated Opp’n. at 8.

Pursuant to 28 U.S.C. § 2675(a), “failure of an administrative agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” Plaintiffs filed administrative claims and waited the requisite six months for resolution of the claims before amending their Complaint to include claims brought under the FTCA. Therefore, Plaintiffs’ FTCA claims are properly before this Court, which has subject matter jurisdiction as to these claims. Odin v. United States, 656 F.2d 798, 802 {p.5} (D.C. Cir. 1981) (holding that the jurisdictional requirements of the FTCA are met where the claimant waits at least six months after the filing of his or her administrative claim before filing suit if the agency fails to make a final disposition of the claim).

To satisfy the presentment requirement necessary to establish FTCA jurisdiction, a claimant must present to the appropriate agency “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” G.A.F. Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1985). In filing their administrative claims, Plaintiffs satisfied the requirements of G.A.F. Corp. by providing both agencies with copies of the Complaint, which included more than enough information to put the agencies on sufficient notice to begin their own investigations. Plaintiffs sufficiently apprised the agencies of their claims by providing specific and particularized details of names, places, and dates. Plaintiffs provided not only the basic information necessary to begin an investigation, but also pointed to recently declassified documents, the Hinchey Report and ultimately to classified information to which only the agencies are privy. See Romulus v. United States, 983 F.Supp. 336, 341 (E.D.N.Y. 1997) (considering that notice is sufficient when the government is in possession of information to begin an investigation of the claim). It is therefore patently clear that Plaintiffs have fulfilled the notice component of the presentment requirement. 6  Plaintiffs’ administrative claim also stated a sum certain {p.6} which neither the Department of State nor the CIA challenged. Therefore, Plaintiffs have fulfilled all the jurisdictional prerequisites to bringing suit under the FTCA.

Defendants’ arguments that other provisions of the FTCA bar Plaintiffs’ claims against the United States are equally unavailing. In their original Motion to Dismiss, Defendants raised the discretionary function exception, 28 U.S.C. § 2680(a) and the foreign country exception, 28 U.S.C. § 2680(k). These are not available to the government at this procedural stage before any discovery has taken place. Whether the acts complained of were discretionary in nature is a question of fact. In Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980), a case concerning Chile’s liability for its role in an assassination committed on American soil, Judge Joyce Hens Green expressly compared the discretionary exception in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602-1611 (1976), to that in the FTCA. Judge Hens Green waited for complete development of the factual record at trial before making the determination of whether the Defendants’ acts were discretionary. Id. at 673.

In any case the discretionary function exception provides no protection to Defendant United States. Providing knowing practical assistance and encouragement to armed and violent coup plotters who kidnapped, tortured, and subsequently murdered a foreign military leader in times of peace and with weapons and funds provided by the Defendants for this purpose cannot be considered to be a discretionary function of U.S. officials. In Letelier, 488 F.Supp. at 673, Judge Hens Green wrote that it is never within the discretion of any government “to commit, or to have one’s officers or agents commit, an illegal act [including] conduct designed to result in the assassination of an individual {p.7} or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”

The foreign country exception is equally unavailing because the acts complained of were ordered and coordinated in and from the United States. Under the headquarters doctrine, the FTCA’s foreign activities exception does not bar claims whose operative effect occurred in a foreign country if the decisions for the alleged actions took place in the United States. See, e.g., Sami v. United States, 617 F.2d 755, 761-63 (D.C. Cir. 1979) (applying headquarters doctrine to claim of false arrest where the arrest took place in Germany because the instructions to make the arrest occurred in the United States); Couzado v. United States {30 kb txt, 36kb.pdf}, 105 F.3d 1389, 1394-96 (11th Cir. 1997) (discussing the headquarters doctrine as a defense to the foreign activities exception to the FTCA); Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045 (9th Cir. 2001), reh’g granted {6kb.pdf}, 284 F.3d 1039 (9th Cir. 2002) (same) {accord, superseding en banc decision, June 3 2003, 400kb.html, slip op. at 7274-7276} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}; Donahue v. United States Dep’t of Justice, 751 F.Supp. 45, 48-49 (S.D.N.Y. 1990) (holding that a claim is not barred by the foreign country exception of the FTCA where the tortious conduct occurs in the United States, but the injury is sustained in a foreign country).

II.
U.S. Officials and the U.S. Government Can Be Held Liable Under International Law.

In the Defs.’ Renewed Motion, Defendants cite Alvarez-Machain {64kb.pdf}, 266 F.3d 1045 {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}, to support the proposition that the United States or high-ranking U.S. officials can never be held civilly liable for violations of international law. See Defs.’ Renewed Mot. at n.3. Defendants’ reliance on Alvarez-Machain is misplaced — that opinion was withdrawn {6kb.pdf} when the Ninth Circuit reheard the case en banc. Additionally, the court in Alvarez- {p.8} Machain makes no such sweeping statement. Alvarez-Machain merely held that where a U.S. official is sued in his or her official capacity for acts committed strictly within the scope of employment for violations of international law, substitution of the United States for the official under the Liability Reform Act is proper, and the FTCA would be the only available remedy against the United States. Alvarez-Machain, 266 F.3d at 1053-54 {accord, superseding en banc decision, June 3 2003, 400kb.html, slip op. at 7259-7260}. Alvarez-Machain does not address whether the United States can ever assume liability under the FTCA for international torts, including violations of jus cogens norms and customary international law. In fact, the Ninth Circuit actually reversed the district court’s dismissal of Alvarez’s FTCA claims against the United States. The court cited international law in support of its holding that the United States was liable under the FTCA for kidnapping. Alvarez-Machain, 266 F.3d at 1059 {accord, superseding en banc decision, June 3 2003, 400kb.html, slip op. at 7258} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)} (holding that DEA agents violated the obligations set forth under the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances).

In the present case, if the Court upholds the certification, the holding in Alvarez-Machain does not preclude Defendant United States from assuming Defendant Kissinger’s liability for international torts, including jus cogens and customary international law violations. Through the FTCA, Congress has seen fit to make the United States liable for civil damages for the tortious conduct of its employees committed within the scope of employment. 28 U.S.C. § 2674 (providing that upon substitution, the United States will be held liable “to the same extent as a private individual under like circumstances). A private individual would be liable for violations of customary international law and jus cogens norms under the ATCA. 7  Thus, according to the {p.9} Congressional intent expressed through the FTCA, the United States would be liable to the same extent as a private individual for violations of customary international law and jus cogens norms.

There is nothing in the FTCA itself which distinguishes between domestic and international torts and the only authority cited by Defendants is the opinion displaced by the rehearing en banc. Alvarez-Machain, 284 F.3d at 1040 {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. Furthermore, there is nothing in the statute or Alvarez-Machain that precludes application of the waiver of sovereign immunity contained in the FTCA to torts committed in violations of the law of nations. Thus, Defendants’ sweeping assertions that the United States can never be held liable for violations of international law are unsupported by the only case they cite for such a proposition. 8 

Similarly, Alvarez-Machain does not address whether U.S. officials acting outside the scope of their employment and sued in their individual capacities can be held liable {p.10} for violations of customary international law or jus cogens norms. Unlike the present case, the DEA officials in Alvarez-Machain were sued solely in their official capacities and for actions committed within the scope of their employment. Also distinct from the present case, in Alvarez-Machain a federal grand jury had indicted Dr. Alvarez, and most importantly, a lawful warrant had been issued for his arrest. Id at 1048 {superseding en banc decision, June 3 2003, 400kb.html, slip op. at 7220} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. The kidnapping, false arrest, torture, and extrajudicial killing of General Schneider was ordered and carried out outside of any similar lawful channel of law enforcement or Congressional oversight, and was not authorized under any statute. Such acts were therefore not within the scope of employment. 9 

Further, Defendants fail to cite Jama v. U.S. Immigration and Naturalization Serv., 22 F.Supp.2d 353 (D.N.J. 1998), which held that INS officials could be held individually liable under the ATCA for violations of customary international law for acts committed under color of law but outside the scope of their employment. The Jama court found that U.S. government officials sued in their individual capacities can be liable for violations of customary international law. Jama, 22 F.Supp.2d at 365. Thus, Defendant Kissinger can be held individually liable for violations of customary law and jus cogens norms. In conclusion, both the U.S. and U.S. officials can be held liable under international law. {p.11}

III.
Plaintiffs Are Entitled to Declaratory Relief.

In addition to seeking compensatory relief, Plaintiffs’ Amended Complaint seeks declaratory relief against the United States and Defendant Kissinger for all the claims alleged. 10  Plaintiffs ask this Court to issue a declaratory judgment finding that the harms suffered by General Schneider and his family were the result of the wrongful actions of the Defendants, who violated Plaintiffs’ human rights as described by the claims alleged in the Amended Complaint.

Plaintiffs have sued Defendant Kissinger in both his individual and official capacities. See Am. Compl. at 2. Insofar as Defendant Kissinger is being sued in his individual capacity he is not entitled to immunity, and this Court can therefore issue a declaratory judgment against him. Jama, 22 F.Supp.2d at 365 (holding that U.S. government officials sued in their individual capacities are not entitled to sovereign immunity). See Pls.’ Consolidated Opp. at 18-21 (citing cases and arguing that Defendant Kissinger is not entitled to absolute or qualified immunity).

Plaintiffs’ request for a declaratory judgment against the United States is similarly authorized under the waiver of sovereign immunity contained in the APA, 5 U.S.C. § 702. The APA provides that an action “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States.” Id. See also Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) (Scalia, J.) (stating that “[w]ith respect to claims against federal [officials] for nonmonetary relief ... the waiver of the {p.12} Administrative Procedure Act ... is arguably available”); Rasul v. Bush {70kb.pdf}, 215 F.Supp.2d 55, 64 n.11 (D.D.C. 2002) {reversed June 28 2004 (U.S., No. 03-343) (521kb.pdf)} (assuming that § 702 of the APA provides a waiver of sovereign immunity for claims against federal officials for nonmonetary relief). The declaratory judgment Plaintiffs seek is a type of nonmonetary relief provided for by the APA. See 5 U.S.C. § 703 (1996).

Plaintiffs recognize that allegations of violations of an operative part of domestic law are a prerequisite to judicial review under the APA. This Court can exercise judicial review over customary international law violations because customary international law is an operative part of domestic law. See Jordan J. Paust, International Law as Law of the United States (1996) (providing extensive overview of operative nature of customary international law in the United States and stating “customary international law has been directly incorporable, at least for civil sanctions and jurisdictional purposes, without the need for some other statutory basis”) (citations omitted). See also The Paquete Habana, 175 U.S. 677, 700 (1900) (holding that “[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.”). Accordingly, “[i]t is ... well settled that the law of nations is part of federal common law,” In re Estate of Ferdinand E. Marcos {54kb.html}, 978 F.2d 493, 502 (9th Cir. 1992) and thus provides a basis for judicial review in the form of a declaratory judgment under the APA.

Finally, because Plaintiffs seek nonmonetary damages in the form of a declaratory judgment, and the Westfall Act applies only to actions that seek money damages, 11  {p.13} Defendants’ arguments that the Westfall Act disposes of all claims against Defendant Kissinger necessarily fails. See Defs.’ Renewed Mot. 4-5 n.3; see also Defs.’ Mot. to Dismiss at 23. The Westfall Act does not apply to nonmonetary claims. Therefore, all claims for declaratory relief against Defendant Kissinger should move forward and are not barred by the Westfall Act. 12 

IV.
Defendants’ Conduct Violated Jus Cogens Norms, Including Torture and Summary Execution.

Contrary to Defendants’ assertion that Plaintiffs “have not alleged violations of jus cogens norms of international law,” see Defs.’ Renewed Mot. at 4, Plaintiffs have clearly, explicitly, and properly alleged such claims multiple times in Plaintiffs’ Complaint, Consolidated Opposition, and Amended Complaint. Compl. at ¶ 48, 55; Am. Compl. at ¶ 48, 55; Consolidated Opp’n. at 5, 22, 39. ¶

Torture and summary execution have been deemed by the international community as among the gravest violations of international law, reaching the level of jus cogens violations. See John Doe I v. Unocal Corp. {356kb.pdf}, No. 00-5603 (9th Cir. Sept. 18, 2002) (2002 WL 31063976) (“Unocal”) (providing current analysis of the status of jus cogens norms and customary international law within United States jurisprudence, and finding that torture and murder are recognized jus cogens violations); see also Hwang Geum Joo v. Japan {142kb.pdf}, 172 F.Supp.2d 52, 60 (D.D.C. 2001) (including cruel, inhuman and degrading treatment as a recognized jus cogens violation) (citing Princz v. Federal Republic of Germany, 26 F.3d 1166, 1173 (D.C. Cir. {p.14} 1994)). ¶

Jus cogens norms of international law are binding upon all nations irrespective of a nation’s acquiescence to them. Unocal {356kb.pdf} at *8 n.14, citing Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir. 1992) {122kb.html, 93kb.html, 224kb.pdf}.

Defendants are equally mistaken in claiming that “the events at issue in this case cannot meaningfully be described as ‘torture and murder.’” Defs.’ Renewed Mot. at 4. ¶

Defendants’ assertion that the events that have occurred do not constitute ‘torture or murder’ raises a question of material fact that is improper for resolution at this procedural hour. Questions of fact cannot be determined without discovery and an evidentiary hearing. See Jacobson v. Hughes Aircraft Co., 105 F.3d 1288, 1292 (9th Cir. 1997), rev’d on other grounds, 525 U.S. 432 (1999) (affirming that dismissal is improper unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) (citations omitted).

Construing the facts in the light most favorable to the plaintiffs as required by Albright v. Oliver, 510 U.S. 266, 268 (1994) (stating the court must “accept the well-pleaded allegations of the complaint as true”); Fed. R. Civ. P. 12(b)(6), there is no basis in fact or law for Defendants’ bare assertion that “the events at issue in this case”—that is, among other claims, the kidnapping and assassination of General René Schneider—“cannot meaningfully be described as ‘torture and murder.’” Defs.’ Renewed Mot. at 4.

Defendants ordered, paid and heavily armed dangerous and violent extremists to remove General René Schneider. Over the course of four days, these extremists made three attempts to kidnap General Schneider. Am. Complaint at 13-14. The repeated attempts to remove General Schneider caused him to be in great fear for his life, controlled him by restricting his movement, and intimidated him before the shooting, {p.15} which caused him prolonged physical and psychological pain and suffering, three days after the shooting until he finally died, in violation of the TVPA 13  and 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 in the United States, Nov. 20, 1994). See Am. Complaint at 17.

During the course of that kidnapping, General René Schneider was shot, and he died as a result of those gunshots. Am. Complaint at 13. ¶

Defendant Kissinger knew or should have known that providing weaponry and ammunition to extremists to remove General Schneider would result in serious bodily harm or murder. United States law plainly states that a homicide in the course of an armed kidnapping is foreseeable. See Tison v. Arizona, 481 U.S. 137, 150-151 (1987); Ershines v. United States, 696 A.2d 1077, 1081 (D.C. Ct. App. 1997). 14  ¶

The acts complained of were carried out with extreme reckless indifference to human life in the process of a felony kidnapping in violation of United States law, the TVPA, and customary international law. 15 

In conclusion, Plaintiffs have alleged jus cogens violations, including torture, summary execution, and cruel, inhuman, or degrading treatment. ¶

Such allegations are clearly supported by the facts, which must be accepted as true at this procedural stage before any discovery has taken place. {p.16}

Conclusion

Because Plaintiffs have stated well-pleaded, cognizable claims and subject matter jurisdiction is satisfied, Defendants’ Renewed Motion to Dismiss should be denied. ¶

Further, the Certification of Scope of Employment should be stricken and leave should be granted to Plaintiffs to proceed with discovery. {p.17}

Respectfully submitted,

{Signature}

Michael E. Tigar, Esq.
1025 Connecticut Ave, NW, Suite 1012
Washington, D.C. 20036.
(202)-274-4088
D.C. Bar No. 103762

Attorney for Plaintiffs

Dated: January 17, 2003
Washington, DC {p.18}

______________________

Certificate of Service

I hereby certify that on January 17, 2003, I served a true copy of the foregoing Memorandum of Points and Authorities in Support of Plaintiffs’ Opposition to Defendants’ Renewed Motion to Dismiss by first class mail, postage pre-paid, addressed to the defendants’ counsel as follows:

Richard Montague
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington D.C. 20044-7146

{Signature}

Megan F. Hagler

Footnotes

 1  Plaintiffs herein incorporate, in full, the original Pls.’ Consolidated Opposition to Defs.’ Mot. to Dismiss.

 2  On November 12, 2002, Plaintiffs filed a Notice to the Court of Suggestion of Death of Defendant Helms. Plaintiffs chose not to include Defendant Helms in the Amended Complaint.

 3  On November 12, 2002, Plaintiffs also filed a Notice to the Court of Supplemental Authority found in John Doe I v. Unocal Corp. {356kb.pdf}, No. 00-5603 (9th Cir. Sept. 18, 2002) (2002 WL 31063976).

 4  Plaintiffs allege these FTCA claims in the alternative without waiving claims against Defendant Kissinger for acts outside the scope of his employment and against all Defendants for violations of peremptory norms of international law.

 5  Due to Defendants’ actions to conceal, cover-up, and present a false account of their acts that were the proximate cause of General Schneider’s death, it was not until November 13, 2000, with the release {of} declassified documents pertaining to events in Chile from 1968-91 from the Department of State, Central Intelligence Agency, Department of Defense, Federal Bureau of Investigation, Department of Justice and National Archives that Plaintiffs were able to obtain sufficient facts to file the present lawsuit. See Pls.’ Consolidated Opp’n, at 7. These documents reveal human rights abuses, terrorism, and other acts of political violence prior to and during the Pinochet era in Chile. See Chile Declassification Documents, available at http://www. foia.state.gov/SearchColls/Search.asp.

 6  The Department of State responded to Plaintiffs’ claim by requesting further information and challenging the validity of the claim. It is well settled that although presentment is mandatory, settlement is merely optional, and as such, a claimant who has fulfilled the notice requirement is not required to respond to requests for additional information. G.A.F. Corp., 818 F.2d at 918-19 (citing Adams v. United States, 615 F.2d 284, 291 (5th Cir. 1980)). The fact that one of the agencies responded by challenging the validity of the administrative claim is irrelevant because “it is not within the government’s discretion to reject claims which meet the minimal requirements of the statute.” Erxleben v. United States, 668 F.2d 268, 273 (7th Cir. 1981) (holding that where an agency improperly challenged the validity of the claimant’s sum certain {p.6} request, plaintiff satisfied § 2675(a) even when he did not respond to the agency and filed suit over one year after receiving notification from the agency).

 7  See Pls.’ Consolidated Opp. at 24, citing cases for the proposition that the ATCA provides jurisdiction and a private right of action for violations of customary international law and jus cogens norms. See also {p.9} Doe v. Islamic Salvation Front (FIS) {178kb.pdf}, 993 F.Supp. 3, 7 (D.D.C. 1998) (holding that in enacting the TVPA, “Congress reaffirmed that the ATCA is an authorization of United States courts to serve as forums to redress violations of international law.”). This case further held that the analysis of the ATCA and international law stated in Kadic v. Karadzic {72kb.html/txt, 100 kb rtf}, 70 F.3d 232, 238 (2d Cir. 1995), is “far more timely than the interpretations set forth in Tel-Oren”) Id. at 8 {subsequent dismissal, March 31 2003 {32kb.pdf}, Judge James Robertson}. See also Doe v. Lumintang {171kb.pdf, 110kb.html/txt}, No. 00-674 (GK) (D.D.C. Sept. 10, 2001) (finding that torture, summary execution, crimes against humanity and cruel, inhuman and degrading treatment are actionable claims under the ATCA); Papa v. United States {29kb.pdf}, 281 F.3d 1004, 1013 (9th Cir. 2002) (rejecting the argument that the ATCA is merely a jurisdictional statute); Unocal {356kb.pdf}, 2002 WL 31063976, at *8 (holding that the ATCA provides a private right of action); Cabello Barrueto v. Fernandez Larios {109kb.html}, 205 F.Supp.2d 1325, 1331 (S.D. Fla. 2002) (holding same, and further holding that the ATCA reaches conspiracy and accomplice liability); Mehinovic v. Vuckovic {143kb.html, 187kb.html, menu}, 198 F.Supp.2d 1322, 1355-56 (N.D. Ga. 2002) (same).

 8  Alternatively, for the reasons set forth in the Pls.’ Consolidated Opp., Plaintiffs maintain that the ATCA provides subject matter jurisdiction and a private right of action against Defendant Kissinger for violations of customary international law, and therefore the ATCA falls under 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). Also alternatively, and for the reasons set forth in Pls.’ Consolidated Opp., this Court can exercise jurisdiction over the international law claims by virtue of 28 U.S.C. § 1331. See, e.g., Forti v. Suarez-Mason, 672 F.Supp. 1531, 1544 (N.D. Cal. 1987) {105kb.html} (holding that § 1331 provides jurisdiction for international law violations in the human rights arena); Karadzic {72kb.html/txt, 100 kb rtf}, 70 F.3d at 246 (recognizing the possibility that § 1331 supplies jurisdiction for violations of international law, but not reaching the ultimate merits of the issue); Bodnar v. Banque Paribas et al., 114 F.Supp.2d 117, 127 (E.D.N.Y. 2000) (same).

 9  Plaintiffs would like to renew their request for an evidentiary hearing on the issue of whether Defendant Kissinger was acting within the scope of his employment. While the United States seeks to certify Defendant Kissinger as acting within the scope of employment, such certification is entitled to judicial review and involves questions of fact that cannot be determined without discovery and an evidentiary hearing. Gutierrez de Martinez, 515 U.S. at 434 (holding certification subject to judicial review and commenting that certification “does not conclusively establish as correct the substitution of the United States as defendant in place of the employee”).

 10  See Am. Complaint at 2. The Amended Complaint alleges the following claims: torture, summary execution, cruel, inhuman or degrading treatment, arbitrary detention, assault and battery, negligence, intentional infliction of emotional distress, and wrongful death.

 11  See 28 U.S.C. § 2679(b)(1) (stating that the Westfall Act applies to claims arising from acts or omissions committed by U.S. employees while acting within the scope of their employment, and that the Act “is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee”) (emphasis added).

 12  Even if the Westfall Act did apply to nonmonetary claims, the Westfall Act still does not bar the claims against Defendant Kissinger because his actions cannot be considered to fall under the scope of his employment. See, e.g., Pls.’ Consolidated Opp. at 8-10. Also, Defendants have already conceded that the claims against Defendant Kissinger for torture and summary execution under the TVPA, 28 U.S.C. § 1350 note, can move forward because the TVPA falls under the second exception to the rule of immunity stated in 28 U.S.C. § 2679(b)(2)(B). See Defs.’ Mot. to Dismiss at 24.

 13  The TVPA defines torture as “any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering ... whether physical or mental ... is intentionally inflicted ... for such purposes as ... intimidating or coercing that individual or a third person.” Pub. L. No. 102-256, 106 Stat. 73 (1992) (supplemented by note 28 U.S.C. 1350).

 14  Professors LaFave and Scott state that “a killing (even an unintended killing) in the commission or attempted commission of a felony may be murder.” Criminal Law § 7.7(b), 696. Furthermore, at common law, by statute, and under the United States’ own Model Penal Code this constitutes “depraved heart murder.” See, e.g., Model Penal Code § 210.2(1)(b) (“under circumstances manifesting extreme indifference to the value of human value”); see also Wayne LaFave & Austin Scott, Criminal Law § 7.4 (3d ed.).

 15  The TVPA defines extra-judicial killing as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court.” Pub. L. No. 102-256, 106 Stat. 73 (1992) (supplemented by note 28 U.S.C. 1350).

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted May 12 2003. Updated March 6 2008.

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