Kline v. Republic of El Salvador

• Decision Date: 14 March 1985
• Docket Number: No. 83-2917.,83-2917.
• Parties: Renate KLINE, et al., Plaintiffs, v. The REPUBLIC OF EL SALVADOR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

603 F. Supp. 1313

Renate KLINE, et al., Plaintiffs, v. The REPUBLIC OF EL SALVADOR, et al., Defendants.

No. 83-2917.

United States District Court, District of Columbia.

March 12, 1985.

As Amended March 14, 1985.

William E. Genego, University of S. Cal. Law Center, Mark D. Rosenbaum, ACLU Foundation of S. Cal. Los Angeles, Cal., Leonard I. Weinglass, New York City, Arthur B. Spitzer, Elizabeth Symonds, American Civil Liberties Union Fund of the Nat. Capitol Area, Washington, D.C., for plaintiffs.

Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., for Federal defendants.

OPINION

HAROLD H. GREENE, District Judge.

This case arises out of the circumstances surrounding the death of Michael Kline, an American citizen, while travelling in El Salvador in October 1982. According to the complaint, Kline was beaten and killed by El Salvadorean soldiers. It is further claimed that the government of El Salvador did not investigate the killing or prosecute the responsible individuals and instead attempted to cover up and distort the true cause of death. In addition, the complaint alleges that United States government agencies and certain named officials attempted also to cover up the circumstances of Michael Kline's death, obstructed the plaintiffs¹ in their attempt to obtain information and refused to undertake an investigation of the relevant events.

The complaint contains four counts. Count One is directed against the government of the Republic of El Salvador, claiming that its agents beat, tortured, and executed Michael Kline; that they blocked any meaningful investigation or prosecution, and that these actions caused severe emotional distress to members of Mr. Kline's family in the United States. Counts Two through Four, which are brought against various United States agencies and officials, allege the commission of common law and constitutional torts. Presently before the Court are two motions to dismiss — that of El Salvador and that of the United States.

I El Salvador

In Count I of the complaint, plaintiffs allege that actions taken by the government of El Salvador in that country relating to the death of Michael Kline constituted the tort of intentional infliction of emotional distress and that, since the distress occurred in the United States, the courts of this country have jurisdiction notwithstanding the fact that El Salvador is a foreign sovereign generally immune from suit. Under established law, there is no basis whatever for that contention.

The Foreign Sovereign Immunities Act (FSIA)² governs claims of immunity in civil actions brought in the courts of the United States against a foreign state. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Under the Act, a foreign state is immune from suit, and the court lacks jurisdiction, unless a specific statutory exception is found to be applicable. The exception claimed by plaintiffs to apply here provides that a foreign state is not immune where money damages are sought against it "for personal injury or death, or damage to property, occurring in the United States (emphasis added)."³

The language of the exception suggests, and the legislative history of the Act⁴ as well as the decided cases make it entirely clear, that United States courts have jurisdiction under the terms of this statute only if the tort as well as the injury occurred in this country.⁵

In Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C.Cir.1984), the parents of a United States Marine taken hostage at the American embassy in Iran sued for the mental and emotional distress they suffered in the United States as a consequence of their son's detention in Iran. The Court of Appeals flatly rejected their claim, holding that "both the tort and the injury must occur in the United States" for a court to have jurisdiction under the Act. 729 F.2d at 842. See also Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C.Cir.1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589-90 n. 10 (9th Cir.1983); Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 362 (N.D.Ill.1983); Matter of Sedco, Inc., 543 F.Supp. 561, 567 (S.D.Tex. 1982). In the instant case, of course, the complaint itself alleges that the tort occurred in El Salvador, and under the precedents that nation is immune from suit in the courts of the United States.⁶

Wholly aside from precedent, it is clear that the construction argued by plaintiffs is inappropriate. If plaintiffs are correct, every alleged governmental tort occurring in any foreign country would be subject to review in the courts of the United States at the request of any member of the family of the victim who claimed to have suffered emotional distress here as a consequence of the foreign act. Such international judicial interference would be entirely unprecedented, and a court would not be justified in engaging in it unless congressional intent to grant jurisdiction therefor were manifestly plain. That, as indicated, is not true here. The claim against the government of El Salvador will accordingly be dismissed.

II Official Capacity

The complaint states three claims against the federal defendants:⁷ (1) intentional infliction of emotional distress; (2) denial of First Amendment rights; and (3) denial of equal protection under the Fifth Amendment.

The federal government, its agencies, and federal officials when sued in their official capacities, are absolutely shielded from tort actions for damages unless sovereign immunity has been waived. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). The only waiver for common law torts conceivably applicable to the present situation is the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a). However, the statute itself constitutes an insuperable obstacle to plaintiffs' claims insofar as they seek relief against the Department of State, the Federal Bureau of Investigation, and the various officers in their official capacities, for three reasons.

First, the Act directs that the exclusive remedy for common law tort claims is an action against the United States rather than against the individuals or the particular governmental agencies (28 U.S.C. § 2679). Since plaintiffs elected to sue the agencies and the officials rather than the government itself, the "official capacity" aspect of their lawsuit must fail for that reason alone. Second, prior to instituting suit, the plaintiffs must exhaust certain administrative remedies (28 U.S.C. § 2675(a)). Plaintiffs have failed to comply with that requirement of the Act as well, and that defect, too, bars their suit. Third, the Federal Tort Claims Act does not waive sovereign immunity with respect to constitutional torts; accordingly, there is no applicable waiver of sovereign immunity for either the First Amendment or the Fifth Amendment claim. Laswell v. Brown, 683 F.2d 261, 267-68 (8th Cir.1982); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir.1978).

For these reasons, all of plaintiffs' claims against the agencies, as well as their claims against the individual officers to the extent that they are being pursued against them in their official capacities, must be dismissed. What remains to be discussed are the claims against the named officials in their individual capacities.

III Common Law Tort

Count II of the complaint alleges that the federal defendants failed to investigate the causes and circumstances of Michael Kline's death and refused to provide information regarding that death, and it seeks damages from these defendants for the common law tort of infliction of emotional distress.

A federal official has absolute immunity from actions for common law torts he is claimed to have committed in his individual capacity provided that (1) these actions were within the outer perimeter of his line of duty; and (2) they are related to a discretionary rather than a ministerial function. Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983); Sami v. United States, 617 F.2d 755 (D.C.Cir.1979); Expeditions Unlimited Aquatic Enterprises v. Smithsonian Institution, 566 F.2d 289 (D.C.Cir.1977). Plaintiffs have not alleged that the activities here involved were beyond the limits of defendants' official duties, and any such claim would be without merit in any event, for these activities were directly related to defendants' positions as officials of the Department of State or of the Federal Bureau of Investigation. Thus, defendants are immune if they were engaged in discretionary functions when they committed the allegedly tortious acts.

A discretionary function has been defined as one in which a government official must determine what action to take based upon a case-by-case analysis of relevant factors and in which his decision includes elements of judgment and discretion. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Gray v. Bell, supra; Beins v. United States, 695 F.2d 591 (D.C.Cir.1982); Sami v. United States, supra.⁸ In contrast, ministerial functions are acts or duties required by law in response to a specific state of facts without the exercise of individual judgment or discretion.⁹

In support of their claim that defendants were engaged only in exercising a ministerial duty, plaintiffs rely on a regulation codified in 22 C.F.R. § 72.4 which requires State Department officials to complete an administrative report "providing essential facts concerning the death of a United States citizen" abroad to his closest known relative. In their view, because that report is required by regulation, immunity is not available to the defendants.¹⁰

The regulation certainly imposes upon State Department officials the function of filing a notification of death report. They must prepare...