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Full-text: February 5 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

Filed, Feb 5 2003, Nancy Mayer Whittington, Clerk U.S. District Court

Civ. No. 01-1902 (HHK)

{sic: RMC}

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

Defendants' Reply Memorandum in Support of their Motion to Dismiss

The plaintiffs brought this suit contending that the President of the United States gave orders to Dr. Kissinger and then Director of Central Intelligence Richard 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.” Initial Complaint ¶ 18 (emphasis added). 1  The plaintiffs have conceded that “Kissinger and Helms were Executive Branch employees and that their acts touched upon foreign relations” of the United States. Plaintiffs’ Consolidated Opposition to Defendants Motion to Dismiss and Cross- {p.2} Motion to Strike Certification at 14 (filed on December 17, 2001). 2  Nevertheless, the plaintiffs assert that their claims are judicially cognizable and even that Dr. Kissinger acted outside the scope of federal office or employment in carrying out the President’s orders. The plaintiffs’ arguments in these respects have been fully addressed in our Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in our Reply Memorandum in support of that motion. Because the parties rely upon the prior briefing, it is necessary here only briefly to touch upon some points raised in the plaintiffs’ most recent opposition.


First, the plaintiffs insist that they have properly amended their complaint to comply with the administrative claim requirement of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b); 2671-2680 (2000) (“FTCA”). According to the plaintiffs, McNeil v. United States, 508 U.S. 106 (1993), 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 [28 U.S.C.] § 2401(b).” Opposition at 4. {p.3}

The plaintiffs fail to acknowledge that “[t]he question presented” in McNeil was whether an FTCA action “may be maintained when the claimant failed to exhaust his administrative remedies prior to filing suit, but did so before substantial progress was made in the litigation.” McNeil, 508 U.S. at 107. That is precisely the issue here. Under 28 U.S.C. § 2675(a), “[a]n action shall not be instituted upon a claim against the United States” under the FTCA “unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.” Id. (emphasis added). This “command,” McNeil emphasizes, “is unambiguous.” McNeil, 508 U.S. at 111. The same is true where the agency does not act within six months, and the claimant elects to deem his claim denied and bring suit in district court. See § 2675(a). The option to deem the claim denied also is subject to the general requirement that an action “shall not be instituted” until the claims process is completed. As the Supreme Court explained in McNeil, “[t]he most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process.” 508 U.S. at 112.

“Complete exhaustion” cannot occur where a party jumps the gun by suing the United States and wants to excuse his premature lawsuit with an amended {p.4} complaint. There is no principled difference between the argument rejected in NcNeil — that the agency’s post-litigation denial of the claim was the event that “instituted” suit in district court, see McNeil, 508 U.S. at 111-12 — and these plaintiffs’ argument that they may “institute” suit by deeming their claim denied, and amending their complaint in their extant lawsuit. Neither approach comports with the “clear statutory command,” McNeil, 508 U.S. at 113, and congressional purpose requiring complete exhaustion of executive remedies. “Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system.” Duplan v. Harper, 188 F.3d, 1195, 1199 (10th Cir. 1999) {34kb.html, 58kb.html} (citing McNeil, 508 U.S. at 112).

Accordingly, it is irrelevant that the “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.” Opposition at 4. For one thing, the plaintiffs sued the United States for damages in their initial complaint, see Initial Compl. ¶ 1 (identifying the United States as a defendant in the caption), id. ¶ 4 (asserting that sovereign immunity does not apply); yet they had not yet completed the administrative claims process. For another, the plaintiffs sued {p.5} government officials for actions taken in the scope of office or employment — actions for which the FTCA generally provides the exclusive remedy. See 28 U.S.C. § 2679(b)(2). Congress contemplated that in such circumstances, the United States shall be substituted as a defendant, even if the substitution must precipitate dismissal of the suit on FTCA exhaustion grounds. See 28 U.S.C. § 2679(d)(4) (providing that “[u]pon certification” the action “shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions”); id. § 2679(d)(5) (setting forth a limited grace period for post-dismissal completion of the claims process in cases in which the United States is substituted and the case dismissed on exhaustion grounds). 3 

The plaintiffs’ Opposition illustrates yet another problem with their attempt to bring suit under the FTCA; the failure of their administrative claim to comply with 28 U.S.C. § 2675(a). As the plaintiffs themselves acknowledge, the irreducible jurisdictional requirements of § 2675(a) are “(1) a written statement sufficiently {p.6} describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” GAF Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1985). See Opposition at 5. According to the plaintiffs, they “satisfied the requirements of G.A.F. Corp. [sic] 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.” Opposition at 5.

Regardless of whether a complaint already naming the United States as a defendant (improperly so) in a pending suit ever can satisfy § 2675(a), the plaintiffs overlook that their complaint did not satisfy the jurisdictional sum-certain requirement. The complaint merely served to inform the Government that the plaintiffs were seeking “compensatory damages according to proof in an amount to be determined at trial but which is in excess of $1,000,000 * * * .” Initial Complaint ¶ 87 (emphasis added). Such an amount without any ceiling is not a sum-certain for purposes of complying with § 2675(a). See Bradley v. United States, 951 F.2d 268, 271 (10th Cir. 1991). But see Martinez v. United States, 728 F.2d 694 (5th Cir. 1984). Given the plaintiffs’ express reliance upon unspecified proof at trial to value their claim, the complaint mailed to the Government cannot reasonably satisfy the “sum-certain” requirement. The plaintiffs have not exhausted their FTCA administrative remedies, and accordingly, the Court lacks jurisdiction {p.7} over the purported FTCA claims. For that reason, as well as the reasons set forth in our prior memoranda, this action should be dismissed.


Although the plaintiffs’ latest arguments on this point are not models of clarity, it appears that the plaintiffs themselves now concede that the Court of Appeals for the Ninth Circuit’s decision in Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045, 1053-54 (9th Cir. 2001), withdrawn, 284 F.3d 1039 (9th Cir. 2002) (order) {6kb.pdf}, {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)} supports the conclusion that the Westfall Act 4  immunizes government officials from personal capacity suits under international law and the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”). See Opposition at 8. The plaintiffs seem to suggest, however, that Alvarez-Machain is distinguishable because the defendants there were sued in their “official” capacities. See Opposition at 10. The plaintiffs likely misunderstand the distinction between “official” and “individual” capacity suits (both of which arise from acts taken in an official capacity). 5  In any {p.8} event, Alvarez-Machain clearly involved individual capacity claims brought against United States officials under the ATCA, and the Ninth Circuit squarely held that the Westfall Act barred those claims. See 266 F.3d at 1053-54 {accord, superseding en banc decision, slip op. at p.7259-7260 (June 3 2003) (400kb.html)} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}.

Leaving aside Alvarez-Machain, the plaintiffs’ international law claims fall squarely within the Westfall Act’s general rule that the exclusive remedy for the negligent or wrongful act or omission of an employee of the Government acting in the scope of office or employment is a suit against the United States under the FTCA, see 28 U.S.C. § 2679(b)(2). See Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss at 25-26; Reply Memorandum in Support of Defendants’ Motion to Dismiss at 13-14. The Westfall Act thus immunizes Dr. Kissinger from suit on those claims. See generally United States v. Smith, 499 U.S. 160, 163 (1991); Haddon v. United States {63kb.html/txt}, 68 F.3d 1420, 1423 (D.C. Cir. 1995). Moreover, although the Westfall Act contains an exception to the general rule of immunity for claims “brought for a violation of a statute of the {p.9} United States under which such action against an individual is otherwise authorized,” 28 U.S.C. § 2679(b)(2)(B), the plaintiffs’ international law claims do not fall within that exception.

Section 1350 creates no substantive rights or duties such that § 1350 can be “violated;” a necessary requirement for application of the § 2679(b)(2)(B) exception to Westfall Act immunity. See Smith, 499 U.S. at 173-74. Instead, § 1350 contemplates that the district courts can entertain an action for the violation of substantive rights conferred elsewhere, i.e., by the law of nations or by a treaty of the United States. See Alvarez-Machain, 266 F.3d at 1053-54 {accord, superseding en banc decision, slip op. at p.7259-7260 (June 3 2003) (400kb.html)} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. See also 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, because United States officials cannot “violate” § 1350, the liability-preserving exception of § 2679(b)(2)(B) does not apply to such claims, and Dr. Kissinger is immune. See Alvarez-Machain, 266 F.3d at 1053-54 {accord, superseding en banc decision, slip op. at p.7259-7260 (June 3 2003) (400kb.html)} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. See also, 499 U.S. at 173-74. 6  {p.10}


The plaintiffs devote no small effort to arguing that their complaint alleges violations of jus cogens norms of international law and that Dr. Kissinger’s alleged actions in carrying out the President’s instructions amount to “torture” and “extrajudicial killing” within the meaning of the Torture Victims Protection Act of 1991, {p.11} Pub. L. No. 102-256, 106 Stat. 73 (1992) (“TVPA”) (see 28 U.S.C. § 1350, note) (“TVPA”). See Opposition at 13-15. The plaintiffs’ claims are barred regardless of whether characterized as violations of jus cogens norms of international law. As we have explained in our prior memoranda, this case presents a non-justiciable political question; the United States has not waived its sovereign immunity with respect to the claims at issue; the Westfall Act and federal common law immunize Dr. Kissinger from suit on the plaintiffs’ various claims, and the TVPA claim fails to state a claim upon which relief can be granted.

The plaintiffs plainly are incorrect that their international law claims are cognizable under the Federal Tort Claims Act. See Opposition at 8-9. (“according to the 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,”). The FTCA waives sovereign immunity only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (emphasis added). “Law of the place” means state law, not federal law, and certainly not treaties of the United States, or the law of nations. Cf. FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) {p.12} (federal constitutional law is not “law of the place” within the meaning of § 1346(b)(1)).

The plaintiffs overstate things more than a little when asserting that “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).” Opposition at 13. 7  As demonstrated in our prior memoranda, the TVPA claim is barred even assuming that it falls within the Westfall Act exception to immunity that preserves personal liability 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). See Memorandum of Points and Authorities in Support of Initial Motion to Dismiss at 34-38; Reply Memorandum at 16-21. As explained in our prior memoranda, the TVPA imposes liability only upon individuals acting “under {p.13} actual or apparent authority, or color of law of any foreign nationTVPA § 2(a), 102 Stat, at 73 (emphasis added). Dr. Kissinger assuredly did not act under color of foreign law when carrying out direct orders from the President of the United States. See Initial Compl. ¶ 18. In addition, the TVPA cannot be applied retroactively to impose liability on United States officials for actions allegedly taken in 1970. See Memorandum of Points and Authorities at 35-37; Reply Memorandum at 18-19. Even were that not so, qualified immunity shields Dr. Kissinger from liability under the later-adopted standards of the TVPA. See Memorandum of Points and Authorities at 38-40. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“If the law” at the time an official acted “was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”). 8  {p.14}


The plaintiffs also emphasize that they have invoked the Administrative Procedure Act’s (“APA”) waiver of sovereign immunity and sought declaratory relief. See Opposition at 11-13. As demonstrated in our Memorandum of Points and Authorities in Support of the initial Motion to Dismiss and in our prior Reply Memorandum, the plaintiffs have presented no justiciable claims for relief, and no claims for which Dr. Kissinger is subject to suit in his individual capacity. Without any viable legal claims, the plaintiffs have no basis on which to seek declaratory relief or APA review. See 5 U.S.C. § 702 (“Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground”).

Like a plea for injunctive relief, a plea for declaratory relief is subject to the same discretionary equitable standards for issuance. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985). See also Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). What Justice (then-Judge) Scalia wrote for the Court of Appeals in Sanchez-Espinoza, is no less applicable here: “[T]he discretionary relief of declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as injunction or mandamus, since it must be presumed that federal officers will adhere {p.15} to the law as declared by the court. Such equivalence of effect dictates an equivalence of criteria for issuance.” 770 F.2d at 208 n.8.

In this case, the plaintiffs cannot obtain damages for the reasons explained in our prior memoranda and summarized above. They cannot obtain an injunction; there is no immediate likelihood they will suffer irreparable harm. The plaintiffs’ claims of past harm just do not suffice to confer standing to seek prospective equitable remedies. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (while past exposure to alleged illegal conduct was presumably sufficient to establish plaintiff’s standing to sue for damages, it was inadequate standing for injunctive relief). Similarly, a mere desire to have declared unlawful the means and ends of United States foreign policy does not confer standing to seek declaratory relief. “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement” of standing. Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 107(1998). “[A]lthough a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts, or that the Nation’s laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.” Id. (citations omitted). Without sufficient allegations of future {p.16} injury, therefore, the plaintiffs have no standing to seek remedies such as injunctive or declaratory relief. See Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268, 1272 (D.C. Cir. 1994). 9  Finally, because the claims in this case challenge foreign and national security policy decisions of the President and his senior advisors, discretionary equitable relief would be particularly inappropriate. See Sanchez-Espinoza, 770 F.2d at 207 (“At least where the authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it would be an abuse of our discretion to provide discretionary relief.”).

* * * * * *

“ The Congress shall have Power ... To declare War”

U.S. Constitution,
Article I, § 8, Clause 11
(Emphasis added)

Nixon concealed from Congress his secret acts of offensive war: to incite, conspire, and aid and abet the overthrow of the democratically elected government of Chile.

The “limiting principle” adopted by the Founding Fathers was to deny the President authority to conduct such acts of offensive war without consent of Congress.

Hence, the killing of René Schneider was ostensibly felony-murder, conspiracy to murder, and RICO murder, under US law by a criminal cabal of U.S. Officials, not lawful violence by the United States, sheltered by the laws of war. Congress is the sole voice of the United States to approve offensive war. The President has no vote.


There is no apparent limiting principle to the novel theories of liability by which the plaintiffs challenge nothing less than foreign and national security policy judgments of the President of the United States and his senior advisors. Covert operations, such as the plaintiffs would challenge here, provide the President and Congress an alternative to direct military force when dealing with foreign governments whose policies are thought inimical to the United States’ interests. {p.17} That is no less true today, when our Government must confront threats posed by terrorist organizations, nations that may harbor terrorists, and by nations that pose a threat to our national security because seeking to obtain weapons of mass destruction. As we have explained in our prior memoranda, there is no apparent reason why any foreign citizen claiming injury as the result of United States support of foreign dissidents could not bring a suit such as this and thereby challenge the means and ends of United States foreign policy. As we also have explained, fundamental principles of separation of powers, and the numerous other legal impediments to this suit, foreclose that result. {p.18}


For the foregoing reasons, as well as the reasons set forth in our prior memoranda, 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

Signature: Richard Montague


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: February 5, 2003 {p.19}


Certificate of Service

I hereby certify that on February 5, 2003, I served a true copy of the foregoing Reply Memorandum in Support of 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




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.5, n.6).  CJHjr

 1  Former Director of Central Intelligence Richard Helms died during the pendency of this action. The amended complaint names only the United States and Dr. Kissinger as defendants.

 2  In addition to having filed their “Memorandum of Points and Authorities in Support of Plaintiffs’ Opposition to Defendants’ Renewed Motion to Dismiss”  (hereinafter “Opposition”), the plaintiffs also rely upon and “incorporate” their Opposition to our initial motion to dismiss. See Opposition at 1 n.1 (“Plaintiffs herein incorporate, in full, the original Pls.’ Consolidated Opposition to Defs.’ Mot. to Dismiss.”).

 3  Curiously, the plaintiffs state that “[i]n 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).” Opposition at 6. The plaintiffs then proceed to explain why they think those exceptions to the FTCA’s waiver of sovereign immunity are inapplicable to their claims. See id. at 6-7. Because those issues were not raised in our motion to dismiss or renewed motion to dismiss, they presently are not before the Court and need not be further addressed.

 4  In 1988, Congress adopted the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified in part in various subsections of 28 U.S.C. §§ 2671; 2674; 2679), in order to overrule the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988). The Act is frequently referred to as the “Westfall Act.” See, e.g., Mittleman v. United States, 104 F.3d 410, 411 (D.C. Cir. 1997).

 5  “Personal-capacity suits,” the Supreme Court has explained, “seek to impose individual liability upon a government officer for actions taken under color of * * * law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). “Official-capacity suits, in contrast, ‘generally represent only another way of {p.8} pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690, n.55 (1978)). See also McMillian v. Monroe County, Alabama, 520 U.S. 781, 785 n.2 (1997). In an official capacity suit, the government is the real party in interest, and the suit is subject to the government’s defenses, such as sovereign immunity. See Graham, 473 U.S. at 166-67. The Westfall Act was designed to shield government officials from individual capacity suits arising from acts or omissions occurring in the scope of employment. United States v. Smith, 499 U.S. 160, 163 (1991); Haddon v. United States {63kb.html/txt}, 68 F.3d 1420, 1423 (D.C. Cir. 1995).

 6  The plaintiffs cite Jama v. U.S. Immigration and Naturalization Serv., 22 F.Supp.2d 353 (D.N.J. 1998), for the proposition 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.” Opposition at 10. Unlike Alvarez-Machain, the district court in {p.10} Jama did not even consider whether Westfall Act immunity would bar an international law damages cause of action brought under the ATCA. In other words, the mere fact that Jama recognized a cause of action against government officials under the ATCA says nothing about the availability of an immunity defense to that cause of action. It is elementary that the availability of a damages cause of action “is a question logically distinct from immunity to such an action on the part of particular defendants.” United States v. Stanley, 483 U.S. 669, 683 (1987). Hence, “[w]hen liability is asserted under a statute, for example, no one would suggest that whether a cause of action exists should be determined by consulting the scope of common-law immunity enjoyed by actors in the area to which the statute pertains.” Id. The same obviously is true where (as in the Westfall Act) Congress provided for a statutory immunity in place of the common law. Alvarez-Machain speaks to the analytically distinct question of immunity; Jama does not.

To the extent that the plaintiffs imply that Jama turned on a determination that the defendants in that case exceeded the scope of employment, moreover, the Jama opinion clearly does not say that, and again the plaintiffs confuse the principles governing the availability of a cause of action with the principles controlling Westfall Act immunity. Dr. Kissinger quite plainly acted in the scope of office or employment in carrying out the President’s orders 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.” Initial Complaint ¶ 18. Accordingly, the plaintiffs’ purported challenge to the Attorney General’s certification of scope of employment under 28 U.S.C. § 2679(d)(1), should be rejected as a matter of law. See Reply Memorandum in Support of our initial Motion to Dismiss, at 2-8. Finally, the plaintiffs fail to recognize that their scope of employment arguments are self-defeating. The international law norms that the plaintiffs invoke apply only to persons acting in an official governmental capacity; not to private actors. See Sanchez-Espinoza v. Reagan, 702 F.2d 202, 206 (D.C. Cir. 1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 794-95 (D.C. Cir. 1984) (Edwards, J., concurring). By arguing that Dr. Kissinger acted outside the scope of federal office or employment, the plaintiffs effectively plead themselves out of court.

 7  As explained in our Memorandum of Points and Authorities in Support of the initial Motion to Dismiss at 34, “[a]lthough the TVPA is engrafted upon the Alien Tort Claims Act, it arguably contains in its definitions of “torture” and “extrajudicial killing” substantive norms such that the TVPA, unlike § 1350 generally, can be “violated.” Far from conceding that the plaintiffs’ novel TVPA claim could go forward, the very next sentence stated “[a]ssuming for argument’s sake that a claim under the TVPA falls within the exception to absolute immunity provided in 28 U.S.C. § 2679(b)(2)(B), the complaint nevertheless states no cognizable claim against Dr. Kissinger or Ambassador Helms under the TVPA.” Id.

 8  The plaintiffs also insist that their allegations describe “torture” and “extra-judicial killing” within the meaning of the TVPA. See Opposition at 14-15. That seems doubtful at best, see Reply Memorandum at 21, but given the many other impediments to the plaintiffs’ claims summarized above, the Court need not enter the thicket. The plaintiffs’ generous and largely abstract invocations of domestic criminal law to challenge foreign and national security policy judgments of the President and his senior advisors, see Opposition at 14-15, do serve to underscore, however, the quixotic nature of the plaintiffs’ TVPA theory.

 9  Thus, to the extent the plaintiffs insist that they can obtain declaratory relief with respect to Dr. Kissinger, even though he is immune from suit for damages, see Opposition at 12-13, their argument clearly is incorrect. See Fair Employment Council, 28 F.3d at 1272.


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}, highlighting, comment, box p.16.

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 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.


Posted May 11 2003. Updated March 6 2008.


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