Gonzalez-Vera v. Kissinger, 05-5017.

• Decision Date: 09 June 2006
• Docket Number: No. 05-5017.,05-5017.
• Citation: 449 F.3d 1260
• Parties: Laura GONZALEZ-VERA, et al., Appellants v. Henry Alfred KISSINGER, in his individual capacity and as National Security Advisor and Secretary of State, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

449 F.3d 1260

Laura GONZALEZ-VERA, et al., Appellants v. Henry Alfred KISSINGER, in his individual capacity and as National Security Advisor and Secretary of State, et al., Appellees.

No. 05-5017.

United States Court of Appeals, District of Columbia Circuit.

Argued March 27, 2006.

Decided June 9, 2006.

Appeal from the United States District Court for the District of Columbia (No. 02cv02240).

Aaron Lloyd, Student Counsel, argued the cause for appellants. With him on the brief was Michael E. Tigar. Ali A. Beydoun, Christine Parsadaian, Courtney J. Nogar, Debra L. Spinelli-Hays, James B. Cowden, Karen Corrie, Laura Rotolo, Melissa Mandor, and Timothy L. Foden entered appearances.

William H. Goodman and Jennifer M. Green were on the brief for amicus curiae Center for Constitutional Rights in support of appellants.

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

Before: GINSBURG, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

The plaintiff-appellants sued the United States and former Secretary of State and National Security Advisor, Dr. Henry A. Kissinger, seeking damages for actions allegedly taken in support of the Pinochet regime in Chile 30-odd years ago. The district court held the plaintiffs' claims justiciable but dismissed the suit on the grounds that the United States had not waived its sovereign immunity and the plaintiffs had failed to state a claim upon which relief can be granted against Dr. Kissinger. We affirm the judgment of dismissal but do so on the ground that the plaintiffs' claims present a nonjusticiable political question.

I. Background

In September 1973 Chilean military officers staged a coup d'état, ousting the elected President, Salvador Allende, and installing Augusto Pinochet as chairman of the newly formed military junta. The plaintiffs allege the Chilean Directorate of National Intelligence (DINA) thereafter "brutal[ly] repress[ed]" and attempted "to eliminate" individuals opposed to Pinochet's regime. Complaint ¶ 60. They further claim "the United States and/or Henry Kissinger funded, assisted, ... aided and abetted, ... acted jointly and conspired with known human rights violators" in the "Chilean terror apparatus" to violate the human rights of the plaintiffs and their relatives. Id. ¶ 2. In particular, the plaintiffs allege Kissinger "purposefully act[ed] outside the proper channels of Congressional oversight of covert operations" to assist and establish contacts with known terrorists and "authorized" the CIA to assist the military regime. Id. ¶¶ 43, 65, 69.

After the release of a report from the United States Department of State suggesting Kissinger was aware of human rights violations committed by the DINA, see Hinchey Report on CIA Activities in Chile (Sept. 18, 2001), available at http://foia.state.gov/Reports/HincheyReport.asp, the plaintiffs brought suit against the United States and Kissinger under the Alien Tort Statute (ATS), 28 U.S.C. § 1350; the Torture Victim Protection Act (TVPA), id. § 1350 note; the common law; and customary international law. Compl. ¶ 10. They sought relief for, among other things, torture, false imprisonment, wrongful death, and intentional infliction of emotional distress. Id. ¶¶ 115, 152, 163, 175-76.

The United States moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction because it raised a political question and, in the alternative, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The plaintiffs argued the case was justiciable and they had stated "cognizable claims" against both the United States and Kissinger. The district court, terming it a "close" call whether the claims were justiciable, ultimately held the political question doctrine was inapplicable. Ruling on the merits, the court held (1) the claims against the United States were barred by sovereign immunity and, (2) because Kissinger had acted within the scope of his employment, the Westfall Act barred all but possibly the TVPA claim against him, see 28 U.S.C. § 2679(b)(1). Assuming arguendo that the Westfall Act did not bar the TVPA claim against Kissinger, see id. § 2679(b)(2)(B) (allowing suit "for a violation of a statute of the United States under which such action against an individual is otherwise authorized"), the district court held the plaintiffs had failed to state a claim under that Act because they did not allege Kissinger had acted under color of foreign law. See id. § 1350 note.

II. Analysis

The plaintiffs ask us to reverse the judgment of the district court on the grounds that (1) sovereign immunity does not bar their claims against the United States; (2) they were entitled to discovery in order to demonstrate Kissinger was not acting within the scope of his employment; (3) the Westfall Act does not bar their claim under the ATS; and (4) they have stated a claim under the TVPA. The Government first argues the case is nonjusticiable under the political question doctrine and, in the alternative, defends the judgment of the district court on the merits.

A. Order of Decision

At the outset, the plaintiffs "question whether [the United States is] procedurally barred from raising th[e] issue" of justiciability because it did not cross-appeal the district court's refusal to apply the political question doctrine. Because "Rule 12(b)(6) is a threshold procedural requirement that cannot include a determination of the merits of a claim," the plaintiffs maintain the Government has "improperly" asked this court "to consider justiciability prior to analyzing the District Court's dismissal."

The plaintiffs mistake the nature of our inquiry. A dismissal based upon the political question doctrine is not an adjudication on the merits. Hwang Geum Joo v. Japan, 413 F.3d 45, 47 (D.C.Cir. 2005). Rather, the doctrine is a "jurisdictional limitation[] imposed upon federal courts by the `case or controversy' requirement of Art[icle] III"; hence "the presence of a political question ... prevent[s] the power of the federal judiciary from being invoked by the complaining party." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); accord Bancoult v. McNamara, 445 F.3d 427, 432 (D.C.Cir. 2006). It follows that regardless whether the Government has raised the issue — in a timely or an untimely manner or not at all — we must consider whether the plaintiffs' claims present a political question lest the court invade the province of the political branches. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

B. Application of the Political Question Doctrine

The United States argues our decision in Schneider v. Kissinger, 412 F.3d 190 (2005), controls this case, rendering all the plaintiffs' claims nonjusticiable. Specifically, the Government argues the claims are nonjusticiable because they would require the court to pass judgment on a matter of foreign policy and national security, which subjects are "textually committed to the political branches," id. at 194. Alternatively, the Government argues "there are no judicially discoverable and manageable standards to apply to the claims here," thus precluding any role for the judiciary. The Government also contends our recent decision in Bancoult v. McNamara "fully supports application of the political question doctrine" in this case.

The plaintiffs distinguish Schneider as having presented a challenge to the Government's "policy decision to support Pinochet's rise to power," whereas the present case challenges specific "acts of torture ... committed after the military government was already in place." Because these acts "could not have been committed in furtherance of any policy decision to support Pinochet's rise to power," they reason, their claims raise no political question. The plaintiffs also cite Sosa v. Alvarez-Machain, 542 U.S. 692, 729, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), for the proposition that "claims based on a narrow class of international norms, such as ... claims of torture and extrajudicial killing, should be protected [sic] and adjudicated in U.S. courts."

The Supreme Court has recognized a half dozen reasons for which a case may be nonjusticiable under the political question doctrine:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). As mentioned above, the United States here argues the first and second reasons; if either obtains, the courts are without jurisdiction to proceed. See Schneider, 412 F.3d at 194.

Despite the plaintiffs' efforts, we fail to see how this case can be distinguished from Schneider. In each instance the plaintiffs brought claims under the common law, international law, the ATS, and the TVPA. The plaintiffs in Schneider alleged the United States and Kissinger, in conjunction with certain Chilean officials, facilitated kidnapping and torture in order...