412 F.3d 190 (D.C. Cir. 2005), 04-5199, Schneider v. Kissinger

Docket Nº:04-5199.
Citation:412 F.3d 190
Party Name:Rene' SCHNEIDER, et al., Appellants v. Henry Alfred KISSINGER and United States of America, Appellees.
Case Date:June 28, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 190

412 F.3d 190 (D.C. Cir. 2005)

Rene' SCHNEIDER, et al., Appellants


Henry Alfred KISSINGER and United States of America, Appellees.

No. 04-5199.

United States Court of Appeals, District of Columbia Circuit

June 28, 2005

Argued March 11, 2005.

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Appeal from the United States District Court for the District of Columbia (No. 01cv01902).

Laura Rotolo, student counsel, argued the cause appellants. With her on the briefs were Michael E. Tigar, and Alison Stites, Christine Parsadaian, Courtney J. Nogar, Debra L. Spinelli-Hays, James B. Cowden, Karen Corrie, Melissa Mandor, Timothy L. Foden, Jennifer Dodenhoff, and Aaron Lloyd, student counsel.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Daniel Meron, Acting Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Barbara L. Herwig, Assistant Director.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

SENTELLE, Circuit Judge.

René and Ral Schneider, surviving sons of deceased Chilean General René Schneider, together with José Pertierra, personal representative of the estate of General Schneider, brought this action in United States District Court for the District of Columbia against the United States and Henry Kissinger, who at the time of the relevant events was the National Security Advisor to the President of the United States. The complaint alleged in nine counts, all of them directed against both defendants, that Kissinger and the United States had caused, in conjunction with Chilean persons not named as defendants, the kidnapping, torture, and death of Plaintiffs-Appellants' decedent. The District Court granted the motion of Defendants-Appellees to dismiss Appellants' complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and failure to state a claim upon which relief could be granted. Plaintiffs filed this appeal. Because we agree with the District Court that the courts lack jurisdiction over nonjusticiable questions raised by the complaint, we affirm the grant of dismissal pursuant to Rule 12(b)(1).

I. Background

Appellants filed their original complaint on September 10, 2001, identifying their relationship to the deceased general and claiming against Kissinger, the United States, and Richard Helms (former Director of the CIA). That complaint alleged that in 1970 the leader of the Chilean leftist coalition, Dr. Salvador Allende, won a slight plurality of the vote (36.3%) in Chile's presidential election, and that this victory on his part created the expectation that he would, in the following months, be ratified by the Chilean congress as the first socialist president of the country.

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According to the complaint, "[k]ey United States policymakers" opposed the choice of Allende as president of Chile and on September 8, 1970, "policymakers" began the process of assessing "the pros and cons and problems and prospects involved should a Chilean military coup be organized ... with U.S. assistance." Compl. ¶ 16, Appellees' Appendix (App.) at 7. After receiving further information, on September 15, 1970, defendants Kissinger, Helms, and Attorney General John Mitchell met with President Nixon. The President ordered that steps be taken to prevent Allende from becoming president, and specifically, that the CIA was to "play a direct role in organizing a military coup d'etat in Chile" and do quickly whatever was possible to prevent the seating of a possible socialist president. Compl. ¶ 18, App. at 8. The President expressed that he was "not concerned" about any risks involved, authorized $10 million in funds to effect such a coup, and required a plan of action be drafted within 48 hours. Id.

The complaint further alleged that efforts to prevent Allende from achieving the presidency proceeded on two tracks. "Track I" was a covert political, economic, and propaganda campaign approved by a subcabinet level body of the executive established to exercise political control over covert operations abroad. Compl. ¶ 19, App. at 8. "Track II" activities were undertaken in direct response to the President's September 15 order and were directed "towards actively promoting and encouraging the Chilean military to move against Allende." Id. In the following months, the tracks moved together. The United States Ambassador to Chile was authorized to encourage a military coup and to intensify contacts with Chilean military officers in order to ascertain their willingness to support such a coup. The Ambassador was also authorized to make contacts in the Chilean military aware that the military would receive no military assistance from the United States if Allende became president of Chile. The Ambassador reported back that General Schneider would be an impediment to achieving the goals outlined in the President's directive, and that he would have to be neutralized. The complaint went on to allege particular acts undertaken in furtherance of the goal of establishing a military coup and claims for relief based on those actions, including the kidnapping, torture, and killing of General Schneider. In all, the complaint alleged seven claims: (1) summary execution; (2) torture; (3) cruel, inhumane, or degrading treatment; (4) arbitrary detention; (5) wrongful death; (6) assault and battery; and (7) intentional infliction of emotional distress.

Defendants moved to dismiss the complaint on November 9, 2001; Plaintiffs responded on December 17, and Defendants replied on January 31, 2002. Also, in November, the Attorney General submitted a certification that Kissinger and Helms were acting within the scope of federal employment at the time of the incident out of which plaintiffs' claims arose. Based on that certification, the Attorney General asked the court to remove the individual defendants from the case under the Westfall Act, 28 U.S.C. § 2679, and substitute the United States. In response to the Westfall certification (and to Helms's October 2002 death), plaintiffs submitted an amended complaint on November 11, 2002. The amended complaint omitted the direct references to President Nixon, deleted the deceased Helms as a defendant, and added two new claims under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), one for "negligent failure to prevent summary execution, arbitrary detention, cruel, inhumane, or degrading treatment, torture, wrongful death, and assault and battery," and one for intentional infliction of emotional

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distress. Am. Compl. pp 87-100, App. at 22-24. Defendants renewed their motion to dismiss on December 12, 2002. Plaintiffs responded to the motion on January 17, 2003. On March 30, 2004, the court granted the motion to dismiss pursuant to Rule 12(b)(1) on the basis that the Political Question Doctrine rendered plaintiffs' claims nonjusticiable. Schneider v. Kissinger, 310 F.Supp.2d. 251, 257-64 (D.D.C.2004) (applying Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). In the alternative, the court held that the complaint failed under Rule 12(b)(6) because (1) Kissinger was immune under the Westfall Act, Schneider, 310 F.Supp.2d. at 264-67, and (2) the United States was immune as sovereign, id. at 268-70. The court noted early in its decision that it would rely on both the original and amended complaints in making its decision, because "[t]he parties ask the Court to consider all briefs, as they did not repeat their initial arguments in response to the amended complaint." Id. at 254 nn. 2-3.

Because we determine that the court correctly ruled that it lacked jurisdiction as a result of the application of the political question doctrine, we need not reach the alternate ground. We note in passing that some of the discussion of sovereign immunity and Westfall questions bears on our application of the Political Question Doctrine, but we need make no determination of the questions raised by those theories in light of the jurisdictional question that is determinative.

II. The Political Question Doctrine

The principle that the courts lack jurisdiction over political decisions that are by their nature "committed to the political branches to the exclusion of the judiciary" is as old as the fundamental principle of judicial review. Antolok v. United States, 873 F.2d 369, 379 (D.C.Cir.1989) (separate opinion of Sentelle, J.). In the venerable case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), Chief Justice Marshall first expressed the recognition by the judiciary of the existence of a class of cases constituting "political act[s], belonging to the executive department alone, for the performance of which entire confidence is placed by our Constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy." Id. at 164. In a continuing line beginning with Chief Justice Marshall's analysis in Marbury v. Madison, this doctrine has evolved as a limitation of the jurisdiction of the courts particularly applicable to foreign relations. See Oetjen v. Cent. Leather Co., 246 U.S. 297, 302-03, 38 S.Ct. 309, 62 L.Ed. 726 (1918). Chief Justice Marshall, writing again in United States v. Palmer, 16 U.S. (3 Wheat.) 610, 4 L.Ed. 471 (1818), described questions of foreign policy as "belong[ing] more properly to those ... who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all its foreign relations; then to that tribunal whose power as well as duty is confined to the application of the rule which the legislature may prescribe for it." Id. at 634 (emphasis added).

Contemporary application of the Political Question Doctrine, as recognized by the District Court, draws on the analysis set forth in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The Baker Court first...

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