Ninth Circuit upholds district court decision that defendants are entitled to immunity under the Westfall Act. As plaintiff did not exhaust her administrative remedies against the United States, the district court properly dismissed the case for lack of subject matter jurisdiction

Plaintiff Sundus Shaker Saleh sues several individuals who served as high-ranking officials in the administration of President George W. Bush. Plaintiff claims that the former officials conspired to engage in, and did engage in, a war of aggression against Iraq and that, in doing so, they violated the “law of nations” within the meaning of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350.

In 2003, Kurdish Army troops forced Plaintiff and her family to leave their home in Jalawla, Iraq, and flee to Baghdad. The troops, who were aligned with the United States, were taking part in what has become known as the Iraq War, a military action that officially began on March 19, 2003, but that, Plaintiff claims, Defendants had been planning for years.

Plaintiff brought this action in 2013. She alleges that Defendants’ conduct in planning and executing the Iraq War amounted to the “crime of aggression” and a conspiracy to commit the crime of aggression, which she claims was a violation of the “law of nations” within the meaning of the ATS. After she filed an amended complaint in September 2013, the United States filed a certification that Defendants had been acting within the scope of their federal office or employment at the time of the incidents at issue in this matter. Under Westfall Act, 28 U.S.C. § 2679(d)(1), the United States was then substituted as the sole defendant. Thereafter, the amended complaint was dismissed because Plaintiff had failed to exhaust her administrative remedies as required by the FTCA, 28 U.S.C. § 2675(a). Plaintiff filed a second amended complaint. The United States again filed a “scope certification,” and the district court again substituted the United States and dismissed the action, this time with prejudice. The district court also denied Plaintiff’s motion for an evidentiary hearing to challenge the scope certification. Plaintiff timely appealed both the dismissal of the action and the denial of her motion for an evidentiary hearing.

The Westfall Act, which was enacted in response to the Supreme Court’s decision in Westfall, accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties. The immunity extends to both “negligent” and “wrongful” “acts or omissions of any employee acting within the scope of his office or employment.” When determining whether a federal officer’s actions fall within “the scope of his office or employment” for purposes of the Westfall Act, the court applies “the principles of respondent superior of the state in which the alleged tort occurred.”

Plaintiff next argued that the Westfall Act should not be interpreted so as to regard as “official” an act condemned by treaty. Plaintiff cited as support for this proposition the United Kingdom case of Regina v. Bartle & the Commissioner of Police for the Metropolis & Others ex parte Pinochet (No. 3), [2000] 1 A.C. 147 (H.L.). This argument suffered from at least two fatal flaws. First, the equivalent of the “scope of employment” test in the Pinochet case was a creature of international law, not a test set out by a domestic statute. Second, although the court had suggested that ambiguous statutes should be interpreted to avoid conflicts even with non-self-executing treaties, the Westfall Act was not, in any relevant way, ambiguous.

“We assume, without deciding, that the prohibition against aggression is a jus cogens norm. But even assuming that the prohibition against aggression is a jus cogens norm, Plaintiff’s argument that Congress cannot provide immunity to federal officers in courts of the United States for violations of that norm is in serious tension with our case law. In Siderman de Blake, we held that Congress could grant a foreign government immunity from suit for alleged violations of the jus cogens norm against torture. Id. at 718-19. After recognizing that immunity might not be available as a matter of customary international law, we noted that we were dealing ‘not only with customary international law, but with an affirmative Act of Congress’—in that case, the Foreign Sovereign Immunities Act. Id. at 718.”

“Siderman de Blake dealt with foreign sovereign immunity, whereas this case concerns the official immunity of domestic officers. But, if anything, that difference cuts against Plaintiff. The immunity of foreign officials in our courts flows from different considerations than does the immunity of domestic officials. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.5 (D.C. Cir. 1985); accord Universal Consol. Cos. v. Bank of China, 35 F.3d 243, 245 (6th Cir. 1994).”

“When the Westfall Act was passed, it was clear that this immunity covered even heinous acts. See, e.g., Hoston v. Silbert, 681 F.2d 876, 877-80 (D.C. Cir. 1982) (per curiam) (holding that United States Marshals were acting in the scope of their employment when they allegedly beat an unarmed, shackled prisoner and left him to die in a holding cell).”

“In short, the treaties and charters cited by Plaintiff do not alter our conclusion that the Westfall Act, by its plain terms, immunizes Defendants from suit.”

CITATION: Saleh v. Bush, 848 F. 3d 880—Court of Appeals, 9th Circuit 2017.

**** Mike Meier is an experienced business consultant. Fluent in German and Spanish, French and Japanese. Juris Doctor (1993) & Master of Laws with distinction (1997), Georgetown University; Master's Degree in Political Science (1988), University of Berlin (Germany), Yale Law School. - Attorney Website at https://mikemeierattorney.com/ - Attorney Profile at: https://solomonlawguild.com/mike-meier# - Attorney News at: https://attorneygazette.com/mike-meier%2C-consultant#