Gonzalez-Vera v. Kissinger - Opposition

No. 06-692

In the Supreme Court of the United States

LAURA GONZALEZ-VERA, ET AL., PETITIONERS

v.

HENRY KISSINGER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY BUCHOLTZ
Acting Assistant Attorney
General
BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred by holding that petitioners' tort claims, based on the United States' alleged involvement in a coup in Chile and in subsequent events there during the 1970s, are not justiciable.

2. Whether the court of appeals erred by affirming the district court's dismissal of petitioners' tort claims based on the political question doctrine.

In the Supreme Court of the United States

No. 06-692

LAURA GONZALEZ-VERA, ET AL., PETITIONERS

v.

HENRY KISSINGER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-9) is reported at 449 F.3d 1260. The opinion of the district court (Pet. App. 12-35) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 9, 2006. A petition for rehearing was denied on August 17, 2006 (Pet. App. 37-39). The petition for a writ of certiorari was filed on November 14, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This case concerns the United States' alleged in volvement in a coup in Chile, and in subsequent events there, during the 1970s. Petitioners are alleged victims (or relatives of alleged victims) of repression in Chile. Respondents are the United States and Dr. Henry Kissinger, who served as National Security Advisor and Secretary of State during the period at issue. Petition ers filed suit against respondents in the United States District Court for the District of Columbia, alleging var ious tort claims. The district court dismissed petition ers' claims, Pet. App. 12-35, and the court of appeals affirmed on the ground that petitioners' claims pre sented a nonjusticiable political question. Id. at 1-9.

1. As alleged in the complaint, the facts are as fol lows. In 1970, Salvador Allende, a Marxist, won a slight plurality of the vote in Chile's presidential election. Re spondents provided support to members of the Chilean military who were planning a coup. Allende was eventu ally deposed in 1973 and replaced by Augusto Pinochet, a general in the Chilean army. The complaint alleges that, under Pinochet's regime, the Chilean government engaged in a variety of human-rights abuses directed at petitioners or their relatives. It further alleges that respondents aided the Chilean government's repressive conduct and failed to take any action to stop it. Pet. App. 2-3, 13-14.

2. On November 13, 2002-nearly 30 years after the alleged conduct-petitioners filed suit against respon dents in the United States District Court of the District of Columbia.1 Petitioners' complaint alleged that re spondents had engaged in, inter alia, intentional inflic tion of emotional distress, cruel and inhuman treatment, false imprisonment, torture, and conduct resulting in wrongful death, in violation of federal, District of Co lumbia, and international law. Pet. App. 3, 12.

After the Attorney General certified that Kissinger was acting within the scope of his office or employment at the time of the incidents out of which the claims arose, the United States sought to be substituted as defendant on petitioners' claims against Kissinger pursuant to the Federal Employees Liability Reform and Tort Compen sation Act of 1988 (Westfall Act), 28 U.S.C. 2679(d)(1). C.A. App. 169. Respondents then moved to dismiss peti tioners' claims on the grounds, inter alia, (1) that the district court lacked jurisdiction under the political question doctrine; (2) that petitioners had failed to state a claim against the United States because the United States had sovereign immunity; and (3) that, even as suming that Kissinger was not immune from suit under the Westfall Act, petitioners had failed to state a claim against him. Pet. App. 3-4, 12-13.

3. The district court granted respondents' motion to dismiss. Pet. App. 12-35. Reasoning that "[t]he issue of whether this case is non-justiciable under the political question doctrine is a close one," id. at 17, the district court ultimately did not pass on respondents' contention that the case should be dismissed under that doctrine. The district court held, however, that petitioners' claims should be dismissed on other grounds. As to the claims against the United States, the district court determined that the United States was entitled to sovereign immu nity. Id. at 20-22. As to the claims against Kissinger, the district court determined that Kissinger was entitled to immunity under the Westfall Act because he was act ing within the scope of his employment at the time of the alleged incidents, id. at 22-29, and further determined that, even assuming that Kissinger was not immune from suit under the Westfall Act, petitioners had failed to state a claim against him. Id. at 29-35.

4. The court of appeals unanimously affirmed on the ground that, under settled precedent, petitioners' claims presented a nonjusticiable political question. Pet. App. 1-9.

As a preliminary matter, the court of appeals re jected petitioners' contention that respondents were barred from invoking the political question doctrine be cause "Rule 12(b)(6) is a threshold procedural require ment that cannot include a determination of the merits of a claim." Pet. App. 4. The court reasoned that "[a] dismissal based upon the political question doctrine is not an adjudication on the merits." Id. at 5. Instead, the court explained, the political question doctrine is a "ju risdictional limitation[] imposed upon federal courts by the 'case or controversy' requirement of Art[icle] III." Ibid. (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (brackets in original)).

The court of appeals proceeded to hold that the polit ical question doctrine was applicable. Pet. App. 5-9. At the outset, the court of appeals noted that, in Baker v. Carr, 369 U.S. 186 (1962), this Court enumerated six factors that would render a case nonjusticiable under the political question doctrine:

[1] [A] textually demonstrable constitutional commit ment of the issue to a coordinate political depart ment; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the im possibility of deciding without an initial policy deter mination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking inde pendent 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 potential ity of embarrassment from multifarious pronounce ments by various departments on one question.

Id. at 217; see Pet. App. 6-7.

The court of appeals agreed with respondents that this case was indistinguishable from Schneider v. Kis singer, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1768 (2006), in which the court of appeals had dis missed materially identical claims under the political question doctrine on the ground that the first four fac tors articulated by this Court in Baker were satisfied. Pet. App. 7. The court of appeals noted that "[petition ers] have alleged and challenged drastic measures taken by [respondents] in order to implement United States policy with respect to Chile," and further noted that "[f]or 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 gov ernment." Ibid. (internal quotation marks and citation omitted). The court reasoned that "[i]t is of no moment that the acts alleged in this case," unlike the acts alleged in Schneider, "took place after the coup." Ibid. As the court explained, "[b]oth types of actions, if they oc curred, were inextricably intertwined with the underly ing foreign policy decisions constitutionally committed to the political branches." Id. at 7-8 (internal quotation marks and citation omitted).

The court of appeals noted that it could "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." Pet. App. 8. The court concluded, however, that "this is not such a case." Ibid. As in Schneider, the court reasoned, "[w]hatever Kissinger did as National Security Advisor or Secretary of State 'can hardly be called anything other than foreign policy.'" Ibid. (quoting Schneider, 412 F.3d at 199).

Finally, the court of appeals rejected petitioners' contention that, insofar as they were pursuing claims under the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. 1350 note, those claims would not be subject to the political question doctrine. Pet. App. 9. The court reasoned that "such a claim, like any other, may not be heard if it presents a political question," and determined that "[petitioners] were unable to extricate their TVPA claims from the political question that per meates their complaint." Ibid.

5. The court of appeals denied a petition for panel rehearing and rehearing en banc without recorded dis sent. Pet. App. 37-39.

ARGUMENT

1. Petitioners primarily contend (Pet. 14-30) that the court of appeals erred by holding that petitioners' tort claims were not justiciable under the political ques tion doctrine. As the court of appeals unanimously held, the claims in this case are not materially distinguishable from the claims in Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005). See Pet. App. 7. This Court recently denied certiorari on a petition challenging the applica tion of the political question doctrine in that case, see 126 S. Ct. 1768 (2006) (No. 05-743), and the same result is warranted here. The decision of the court of appeals involves only the fact-bound application of settled law, and does not conflict with any decision of this Court or of another court of appeals.

a. The court of appeals correctly concluded that this case should be dismissed under the political question doctrine. In Baker v. Carr, 369 U.S. 186 (1962), this Court enumerated six factors that would render a case nonjusticiable under that doctrine. Id. at 217. The Court made clear that a case could properly be dis missed under the political question doctrine even if only one of those factors was satisfied. See ibid. In this case, at least four of the Baker factors were satisfied.

Petitioners' claims concern the alleged involvement of American officials in a coup in Chile, and in subse quent events there, during the 1970s. Adjudicating those claims would necessarily require a Court to evalu ate the reasonableness of decisions by the President and other Executive Branch officials to support the over throw of a Marxist-led government in Chile and later to support the Pinochet regime. As the government ex plained in its brief in opposition in Schneider (05-743 Br. in Opp. at 9), it is clear that adjudication of petitioners' claims would implicate the constitutional commitment of the conduct of our Nation's foreign relations to the Ex ecutive and Legislative Branches; that there are no judi cially discoverable or manageable standards for the ad judication of petitioners' claims; that the adjudication of petitioners' claims would necessarily involve a policy determination of a kind clearly for nonjudicial discre tion; and that it would be impossible to adjudicate those claims without expressing a lack of respect for the Exec utive and Legislative Branches. Baker, 369 U.S. at 217; see Schneider, 412 F.3d at 194-198.

Like the petitioners in Schneider, petitioners here do not expressly contend that the decision of the court of appeals conflicts with any decision of this Court or an other court of appeals. Instead, they merely contend that there is "confusion and disarray in the lower federal courts" concerning the application of the political ques tion doctrine. Pet. 3. Petitioners, however, do not iden tify any case involving the political question doctrine (other than this one) that they believe was incorrectly decided. Instead, the various cases cited by petitioners (ibid.) stand only for the unremarkable proposition that, in some cases, federal courts have concluded that the political question doctrine precludes judicial resolution of claims touching on foreign-policy and national-secu rity concerns, and, in other cases, they have concluded that it does not. The differing results in those cases are wholly consistent with the principle that the political question doctrine requires a "case-by-case inquiry." Baker, 369 U.S. at 211; see generally 13A Charles A. Wright et al., Federal Practice and Procedure § 3534, at 454 (2d ed. 1984) (noting that "application of the political question tests of [Baker] is * * * highly individual ized").

b. Petitioners contend (Pet. 18) that "[c]ongressional legislation reaffirms the United States' prohibition against torture and provides judicially manageable stan dards." But by enacting statutes such as the Torture Victim Protection Act (TVPA), Congress did not some how preclude the application of the political question doctrine to claims under those statutes. A typical claim under the TVPA, for example, does not implicate the political question doctrine, insofar as such a claim in volves an allegation that a foreign official engaged in torture or extrajudicial killing under color of foreign law. See 28 U.S.C. 1350 note; cf. Pet. App. 9 (noting that "[w]e need not quarrel with the plaintiffs' assertion that certain claims for torture may be adjudicated in the fed eral courts as provided in the TVPA"). The claims in this case, by contrast, focus primarily on the failure by the American government to assert greater pressure on the Pinochet regime-and allege that, by virtue of that failure, the American government is culpable for the alleged abuses of that regime. See, e.g., id. at 34 (listing allegations from complaint). The court of appeals cor rectly concluded that, where (as here) a plaintiff's claims under the TVPA (or similar statutes) would "require [the court] to delve into questions of policy textually committed to a coordinate branch of government," id. at 8 (internal quotation marks and citation omitted), the political question doctrine precludes consideration of those claims, just as it does in other contexts. Id. at 9.

2. Petitioners also contend (Pet. 10-14) that the court of appeals erred by characterizing the political question doctrine as "jurisdictional." This Court re cently denied certiorari on a petition raising that issue as well, see Bancoult v. McNamara, No. 06-502 (Jan. 16, 2007), and it should do likewise here.

This Court has characterized the political question doctrine as an aspect of "the concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the 'case or controversy' require ment" of Article III of the Constitution. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). The Court has explained that "the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party." Ibid.; see Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 (1986) (noting that the political question doctrine "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally com mitted for resolution" to the political branches). The court of appeals' description of the political question doctrine as "jurisdictional" was therefore entirely con sistent with this Court's own description of the doctrine. Pet. App. 5.

More broadly, however, it is irrelevant for present purposes whether the political question doctrine is prop erly described as "jurisdictional" in nature. In this case, the court of appeals merely affirmed the district court's dismissal of petitioners' action on the alternative ground that petitioners' claims were nonjusticiable under the political question doctrine. Pet. App. 5. It is indisput able that a district court could dismiss a case based on the political question doctrine, regardless whether such a dismissal is characterized as "jurisdictional" or merely prudential. Moreover, petitioners do not contend more specifically that it was inappropriate for the court of appeals to determine that petitioners' claims were nonjusticiable under the political question doctrine be fore considering whether petitioners' claims should be dismissed on other grounds. To the extent that those other grounds are merits-based, see, e.g., id. at 29-35, such a contention would in any event lack merit.2

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
JEFFREY BUCHOLTZ
Acting Assistant Attorney
General
BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys

JANUARY 2007

1 Petitioners also filed suit against Michael Vernon Townley, assert ing that Townley served as an agent of the Chilean Directorate of National Intelligence. C.A. App. 11. Townley did not appear before the district court and is not a respondent before this Court.

2 To the extent that those other grounds are jurisdictional, this Court has already held that a question concerning a doctrine that is "designed not merely to defeat the asserted claims, but to preclude judicial inquiry" can be decided before a jurisdictional question. Tenet v. Doe, 544 U.S. 1, 7 n.4 (2005). Because the political question doctrine is precisely such a doctrine, the petition in this case need not be held pending this Court's decision in Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., No. 06-102 (argued Jan. 9, 2007). That case presents the issue whether a district court must first establish jurisdiction before dismissing a suit on the ground of forum non conveniens.