Harbury v. Hayden (D.C. Cir. 4/15/08)

KAVANAUGH, Randolph, Williams (concurring in part)

Jennifer Harbury sued on behalf of herself and Efrain Bamaca, alleging individual liability on the part of CIA employees complicit in the torture and death of her husband.  The DC found the suit barred by the Political Question Doctrine, as it would require the courts to assess whether the conduct should have occurred. Alternately, it found that the CIA officials were acting in the scope of their employment, so that the FTCA applied; and the FTCA bars suits re actions that occurred abroad (the Court said that her emotional distress was derivative of the actions abroad). Finally, in a footnote, the Court found that if her claim was a TVPA action, if would still be barred by the Political Question Doctrine.

Read decision here: 

1.  Found the Political Question Doctrine implicated, as required by CtApp's earlier decisions in Schneider v. Kissinger, 412 F.3d 190, 192 (D.C. Cir. 2005); Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006); Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006).

   [A]lthough the plaintiffs in all three cases argued that they challenged specific acts and not general Executive Branch foreign policy decisions, this Court reasoned that the cases sought determinations whether the alleged conduct should have occurred, which impermissibly would require examining the wisdom of the underlying policies. Schneider, 412 F.3d at 197; Gonzalez-Vera, 449 F.3d at 1263-64; Bancoult, 445 F.3d at 436.

2.  Suggested that the FTCA decision to certify that actions were in the course of employment was also insulated by the Political Question Doctrine.

   In all three cases, as in Harbury’s case, the Attorney General certified that the government officials had acted within the scope of their foreign policy or national security employment. In tort cases arising in the national security or foreign policy context – such as Schneider, Gonzalez-Vera, and Bancoult – the political question doctrine counsels strongly against judicial second-guessing of the Attorney General’s certification for much the same reason that courts are cautious about entertaining the merits of the tort claims: Doing so would require courts to intrude deeply into the foreign policy and national security decisionmaking process of the Executive Branch. See Christopher v. Harbury, 536 U.S. 403, 417 (2002) (“The action alleged on the part of all the Government defendants . . . was apparently taken in the conduct of foreign relations by the National Government. Thus, if there is to be judicial enquiry, it will raise concerns for the separation of powers in trenching on matters committed to the other branches.”)

3.  Alternately, in the DC courts, criminal and violent conduct can be "in the course of employment" - because the AG certified that the acts were in the course of employment, the FTCA applies - and the FTCA doesn't waive sovereign immunity for actions arising abroad.

4.  Her emotional distress was derivative of acts abroad.

5.  Even if she raised a TVPA claim (which the DCt did not find), the Torture Victims Protection Act would not avoid Political Question Doctrine (Judge Williams not in agreement).

  FN5 . . . Even if Harbury’s complaint had asserted a TVPA claim, moreover, the claim would pose a nonjusticiable political question under our precedents. See, e.g., Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006) (TVPA claim, “like any other, may not be heard if it presents a political question”). (Judge Williams would affirm the dismissal of count 28 solely on political question grounds and not on the alternative ground that Harbury failed to state a claim under the TVPA. In support of that view, he points to the language in count 28 claiming that the individual CIA Defendants participated or collaborated in torture and extrajudicial execution in violation of “the law of the United States,” and to two prior opinions of the District Court (those of March 9, 2000, and March 13, 2001, see J.A. 112, 119) characterizing Harbury as having “name[d]” the TVPA as a basis for count 28.)

Atty: Jennifer Harbury, pro se

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