United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 27, 2006 Decided June 9, 2006
No. 05-5017
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
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.
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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”
3
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
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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.”
5
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.”
Schlesigner v. Reservists Comm. to Stop the War, 418 U.S. 208,
215 (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 (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
6
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 (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 (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
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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 to
further the goals of “[k]ey United States policymakers” who had
opposed the election of President Allende. Id. at 191-92. We
held the plaintiffs’ claims nonjusticiable per the political
question doctrine because they challenged “foreign policy
decisions of the United States .... within the province of the
political branches.” Id. at 195. More specifically, the complaint
presented questions “textually committed to a coordinate branch
of government,” running afoul of the first reason stated in Baker
v. Carr. Id. at 194.
The same is true here. The plaintiffs have alleged and
challenged drastic measures taken by the United States and
Kissinger in order to implement United States policy with
respect to Chile. For the court to evaluate the legal validity of
those measures would require us to delve into questions of policy
“textually committed to a coordinate branch of government.” Id.
It is of no moment that the acts alleged in this case took place
after the coup. True, as the plaintiffs state, those acts “could not
have been committed in furtherance of any policy decision to
support Pinochet’s rise to power,” but the difference between
actions taken to place Pinochet in power and actions taken to
keep him in power does not a viable distinction make: Both
types of actions, if they occurred, were “inextricably intertwined
with the underlying” foreign policy decisions constitutionally
committed to the political branches. Bancoult, 445 F.3d at 436.
Nor are we persuaded by the plaintiffs’ purported distinction
8
between challenging an “action” and challenging a “policy.” As
we explained in Bancoult, the dichotomy is false; actions taken
in furtherance of foreign relations themselves may “constitute[]
foreign policy decisions.” Id. at 437.
Such is indeed the case here. Although the plaintiffs
attempt to characterize Kissinger’s acts as ultra vires, Compl. ¶
2, we reiterate what we said in Schneider: Whatever Kissinger
did as National Security Advisor or Secretary of State “can
hardly be called anything other than foreign policy.” 412 F.3d
at 199.
To be sure, we can imagine a case in which a rogue agent
commits an act so removed from his official duties that it cannot
fairly be said to represent the policy of the United States, but this
is not such a case. The plaintiffs allege Kissinger “purposefully
act[ed] outside the proper channels of Congressional oversight,”
Compl. ¶ 43, but that does not take his conduct outside the scope
of his employment; the statutory descriptions of Kissinger’s
positions make clear his duty was to the President, not to the
Congress. See 22 U.S.C. § 2656 (Secretary of State responsible
for “conduct[ing] the business of the department in such manner
as the President shall direct”); 50 U.S.C. § 402(a)-(b) (function
of National Security Council, of which National Security
Advisor is a member, “to advise the President with respect to the
integration of ... policies relating to the national security” and to
perform “such other functions as the President may direct”).
We need not quarrel with the plaintiffs’ assertion that
certain claims for torture may be adjudicated in the federal courts
as provided in the TVPA, see 28 U.S.C. § 1350 note. We simply
observe that such a claim, like any other, may not be heard if it
presents a political question. So it was that, before concluding
the present case is entirely nonjusticiable under the political
9
question doctrine, we requested supplemental briefing on the
justiciability of the plaintiffs’ claims under the TVPA. See
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230
(1986) (although “courts are fundamentally underequipped to
formulate national policies or develop standards for matters not
legal in nature .... it goes without saying that interpreting
congressional legislation is a recurring and accepted task for the
federal courts” (internal quotation marks omitted)). As we have
seen, however, the plaintiffs were unable to extricate their TVPA
claims from the political question that permeates their complaint.
The plaintiffs having failed to present any cognizable factual
distinction of, or persuasive legal argument for departing from,
our decision in Schneider, that precedent must control this case.
III. Conclusion
In Schneider we held nonjusticiable various claims against
the United States and Dr. Kissinger for measures allegedly taken
in the 1970s to implement the United States’ foreign policy with
respect to Chile. We do so again today. Because the plaintiffs’
claims call into question foreign policy decisions textually
committed to the political branches, they must be and hereby are
Dismissed.