Date: 02-12-2017

Case Style: Sudus Shaker Saleh v. George W. Bush, et al.

Case Number: 15-15098

Judge: Graber

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Northern District of California (San Francisco County)

Plaintiff's Attorney: Dave Inder Comar (argued), Comar Law, San Francisco,
California, for Plaintiff-Appellant.

Defendant's Attorney: Attorneys, Appellate Staff; Melinda Haag, United States
Attorney; Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Civil Division, United States Department
of Justice, Washington, D.C.; for Defendants-Appellees.

Jerome Paul Wallingford, San Diego, California, for Amicus
Curiae Lawyers for International Law.

Rajeev E. Ananda, New York, New York, for Amicus Curiae
Planethood Foundation

Description: 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. The district court substituted the
United States for the officials as the sole defendant pursuant
to the Westfall Act, 28 U.S.C. § 2679(d)(1), and then
dismissed the case because Plaintiff had not exhausted her
administrative remedies as required by the Federal Tort
Claims Act (“FTCA”). Plaintiff argues that substitution of
SALEH V. BUSH 5
the United States was improper because the former officials
are not entitled to official immunity. Because we conclude
that the individual defendants are entitled to official
immunity under the Westfall Act and that the United States
properly was substituted as the sole defendant, we affirm.
FACTUAL AND PROCEDURAL HISTORY1
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, Defendants2 had been
planning for years. Plaintiff endured many hardships in
Baghdad. Eventually she was forced to leave Iraq and move
to Jordan. In this case, she seeks to represent “a class of
persons consisting of all innocent Iraqi civilians who, through
no fault of their own, suffered damage” from the Iraq War.
1 We recount the facts as alleged in Plaintiff’s second amended
complaint. See McLachlan v. Bell, 261 F.3d 908, 909 (9th Cir. 2001)
(holding that, when reviewing a dismissal in the absence of an evidentiary
hearing, “we accept as true the factual allegations in the complaint”).
2 The defendants are former President George W. Bush, former Vice
President Richard B. Cheney, former Secretary of Defense Donald
Rumsfeld, former National Security Advisor and Secretary of State
Condoleezza Rice, former Secretary of State Colin Powell, former Deputy
Secretary of Defense Paul Wolfowitz, 10 other former high-ranking
officials in the Bush Administration, and the United States. In this
opinion, we use “Defendants” to refer only to the individual defendants,
who were the named defendants below. We refer to the United States,
which was substituted as the sole defendant, as the United States.
6 SALEH V. BUSH
Plaintiff claims that Defendants Cheney, Rumsfeld, and
Wolfowitz began advocating for an invasion of Iraq and for
the removal of Iraqi President Saddam Hussein from power
as early as 1997. In January 1998, Rumsfeld and Wolfowitz
sent President Clinton a letter urging him to “implement a
‘strategy for removing Saddam’s regime from power,’ which
included a ‘willingness to undertake military action as
diplomacy is clearly failing.’” (Emphasis in complaint.)
They sent a similar letter to Speaker of the House Newt
Gingrich and Senate Majority Leader Trent Lott later that
year.
Defendant Bush became President in January 2001, and
appointed the other Defendants to high-ranking positions
within his administration. According to Plaintiff, Defendants
almost immediately began to discuss a possible invasion and
occupation of Iraq, with Defendant Rumsfeld stating at an
early National Security Council meeting that “what we really
want to think about is going after Saddam.” As then-
Treasury Secretary Paul O’Neill later put it:
From the start, we were building the case
against Hussein and looking at how we could
take him out and change Iraq into a new
country. And, if we did that, it would solve
everything. It was all about finding a way to
do it. That was the tone of it. The President
saying, “Fine. Go find me a way to do this.”
(Emphasis in complaint.)
According to Plaintiff, the September 11, 2001 attacks
provided Defendants with a pretext to launch an invasion of
Iraq. Defendants Wolfowitz and Rumsfeld “openly pushed
SALEH V. BUSH 7
for war against Iraq” on the day of the attacks, despite the
lack of evidence tying Iraq to the attacks. Defendant Bush
was less eager to take action without evidence of a link
between Iraq and the September 11 attackers. He asked
various officials to “go back over everything” to try to find
evidence that Saddam Hussein had been involved with Al
Qaeda. Over the course of the next year or so, Defendants
began planning for the invasion of Iraq, even as they
struggled to find such a link.
Beginning around August 2002, Defendants allegedly
mounted a coordinated campaign to convince “the public, the
Congress and the allies of the need to confront the threat from
Saddam Hussein.” As part of that campaign, Defendants and
others “continually used fabricated intelligence from
unreliable sources in order to prep the public for an invasion
of Iraq.” For instance, Defendant Bush claimed in his 2003
State of the Union address that Iraq had tried to “obtain large
quantities of uranium from Africa,” despite the fact that this
claim was “unconfirmed and highly unlikely.” During that
time period, Defendants also continued to plan for an
invasion of Iraq. According to Plaintiff, Defendants were
committed to the invasion whether or not the United Nations
approved of the action and whether or not United Nations
inspectors uncovered evidence that Iraq was developing
nuclear weapons.
On March 7, 2003, International Atomic Energy Agency
Director General Mohamed ElBaradei “reported to the UN
Security Council that there was no indication ‘of resumed
nuclear activities,’ ‘that Iraq has attempted to import
uranium,’ [or] ‘that Iraq has attempted to import aluminum
tubes for use in centrifuge enrichment.’” Nonetheless, less
than two weeks later, the United States invaded Iraq.
8 SALEH V. BUSH
Congress authorized the use of military force to “defend the
national security of the United States against the continuing
threat posed by Iraq.” Authorization for Use of Military
Force Against Iraq Resolution of 2002, Pub. L. No. 107-243,
116 Stat. 1498 (“Authorization for Use of Military Force”),
but Defendants did not secure United Nations authorization
for the war.
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,3 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 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
3 Like Plaintiff, we use the shorthand term “aggression” to refer to
both aggression itself and conspiracy to commit aggression, both of which
Defendants are alleged to have engaged in. For purposes of this case, we
define aggression as the waging of unprovoked war. See, e.g., Depositary
Notification, Amendments to the Rome Statute of the International
Criminal Court on the Crime of Aggression, Reference C.N.651.2010
(Nov. 29, 2010) (defining aggression in a similar, though more complex,
way). A slightly different definition of aggression is “the use of military
force as an instrument of advancing national policy.” Grant M. Dawson,
Defining Substantive Crimes Within the Subject Matter Jurisdiction of the
International Criminal Court: What is the Crime of Aggression?,
19 N.Y.L. Sch. J. Int’l & Comp. L. 413, 432 (2000). Our analysis does
not depend on the precise definition of aggression.
SALEH V. BUSH 9
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 appeals both the dismissal of the action and
the denial of her motion for an evidentiary hearing.
STANDARDS OF REVIEW
“We review the dismissal [for lack of subject matter
jurisdiction] and the denial of the challenge to certification de
novo. . . . We review the decision whether to conduct an
evidentiary hearing for abuse of discretion.” McLachlan v.
Bell, 261 F.3d 908, 910 (9th Cir. 2001) (footnote omitted).
DISCUSSION
The Alien Tort Statute grants “district courts . . . original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350. Not every violation of the
law of nations gives rise to a claim that can be brought under
the ATS. Rather, “any claim based on the present-day law of
nations [must] rest on a norm of international character
accepted by the civilized world and defined with a specificity
comparable to the features of the 18th-century paradigms”
that the drafters of the ATS had in mind—“violation of safe
conducts, infringement of the rights of ambassadors, and
piracy.” Sosa v. Alvarez-Machain, 542 U.S. 692, 724–25
(2004). The set of “ATS torts”—violations of norms of
international law giving rise to claims cognizable under the
ATS—is, therefore, not frozen in time, but the Supreme Court
has instructed us to be wary of adding to that set. See id. at
10 SALEH V. BUSH
729 (“[T]he door to further independent judicial recognition
of actionable international norms . . . is still ajar subject to
vigilant doorkeeping, and thus open to a narrow class of
international norms today.”). Perhaps not surprisingly, only
a few new ATS torts have been recognized by federal
appellate courts since Sosa was decided. See, e.g., Doe I v.
Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014)
(holding that a violation of the “prohibition against slavery”
gives rise to a claim under the ATS); Abdullahi v. Pfizer, Inc.,
562 F.3d 163, 169 (2d Cir. 2009) (concluding that a violation
of the “prohibition . . . against nonconsensual human medical
experimentation” is an ATS tort).
Plaintiff asks us to recognize a violation of the norm
against aggression as an ATS tort. We need not decide that
issue. Assuming, without deciding, that engaging in
aggression constitutes an ATS tort,4 Plaintiff’s claims against
Defendants nonetheless fail, because Congress has granted
Defendants official immunity from those claims. The only
proper defendant in this case is therefore the United States,
and Plaintiff’s claims against the United States are barred
because Plaintiff failed to exhaust administrative remedies as
required by the FTCA.
We first address the question whether Defendants are
entitled to immunity under the terms of the Westfall Act. We
then address Plaintiff’s argument that, even if the Westfall
4 Because we resolve this case on the ground that Plaintiff failed to
exhaust administrative remedies as required by the FTCA—a
jurisdictional requirement under our caselaw, Brady v. United States,
211 F.3d 499, 502 (9th Cir. 2000)—we do not address any other threshold
issues. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999)
(holding that “there is no unyielding jurisdictional hierarchy”).
SALEH V. BUSH 11
Act purports to confer immunity on Defendants, immunity
cannot attach because Plaintiff has alleged that Defendants
violated a jus cogens norm of international law.5
A. Defendants’ Official Immunity Under the Westfall Act
“The concept of the immunity of government officers
from personal liability springs from the same root
considerations that generated the doctrine of sovereign
immunity. While the latter doctrine—that the ‘King can do
no wrong’—did not protect all government officers from
personal liability, the common law soon recognized the
necessity of permitting officials to perform their official
functions free from the threat of suits for personal liability.”
Scheuer v. Rhodes, 416 U.S. 232, 239 (1974), abrogated on
other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
“[T]he scope of absolute official immunity afforded federal
employees is a matter of federal law, to be formulated by the
courts in the absence of legislative action by Congress.”
Westfall v. Erwin, 484 U.S. 292, 295 (1988) (internal
quotation marks omitted), superseded on other grounds by
Pub. L. No. 100-694, 102 Stat. 4563 (1988), codified at
5 Plaintiff also contends that judicial estoppel should bar the United
States and Defendants from arguing that Defendants are entitled to
immunity, because the United States took a different position during the
Nuremberg Trials following World War II. We are not persuaded. The
immunity claimed by Defendants and the United States comes from the
Westfall Act, which did not exist at the time of the Nuremberg Trials.
Thus, even assuming that the current position of the United States were
clearly inconsistent with the position taken at the Nuremberg Trials, the
new position rests on an intervening change in law and therefore is not
subject to judicial estoppel. See Longaberger Co. v. Kolt, 586 F.3d 459,
470 (6th Cir. 2009) (collecting cases), abrogated on other grounds by
Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan,
136 S. Ct. 651 (2016).
12 SALEH V. BUSH
28 U.S.C. § 2679(d). “The purpose of such official immunity
is not to protect an erring official, but to insulate the
decisionmaking process from the harassment of prospective
litigation.” Id.
The Westfall Act,6 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.” Osborn v. Haley, 549 U.S. 225, 229 (2007).
The immunity extends to both “negligent” and “wrongful”
“act[s] or omission[s] of any employee . . . acting within the
scope of his office or employment.” 28 U.S.C. § 2679(b)(1).
The Act does not set out a test to determine whether an
employee was “acting within the scope of his office or
employment”; rather, Congress intended that courts would
apply “the principles of respondeat superior of the state in
which the alleged tort occurred” in analyzing the scope-ofemployment
issue. Pelletier v. Fed. Home Loan Bank of S.F.,
968 F.2d 865, 876 (9th Cir. 1992). The same analysis was
employed before passage of the Westfall Act to determine
whether the United States could be liable for an employee’s
torts under the FTCA. Id. at 875–76.
The Westfall Act provides a procedure by which the
federal government determines whether an employee is
entitled to immunity. When a current or former federal
employee is sued and the employee believes that he is entitled
to official immunity, he is instructed to “deliver . . . all
6 The Act is officially called the Federal Employees Liability Reform
and Tort Compensation Act of 1988, but it is “commonly known as the
Westfall Act.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419–20
(1995).
SALEH V. BUSH 13
process served upon him . . . to his immediate supervisor” or
other designated official, who then “furnish[es] copies of the
pleadings and process therein to the United States attorney for
the district embracing the place wherein the proceeding is
brought, to the Attorney General, and to the head of his
employing Federal agency.” 28 U.S.C. § 2679(c). The
Attorney General then determines whether “the defendant
employee was acting within the scope of his office or
employment at the time of the incident out of which the claim
arose.” Id. § 2679(d)(1). If so, the Attorney General issues
a “scope certification,” which “transforms an action against
an individual federal employee into one against the United
States.” Hui v. Castaneda, 559 U.S. 799, 810 (2010). The
“United States shall be substituted as the party defendant,”
28 U.S.C. § 2679(d)(1), and the employee is released from
any liability: “The remedy against the United States . . . is
exclusive of any other civil action or proceeding for money
damages by reason of the same subject matter against the
employee whose act or omission gave rise to the claim or
against the estate of such employee. Any other civil action or
proceeding for money damages arising out of or relating to
the same subject matter against the employee or the
employee’s estate is precluded without regard to when the act
or omission occurred.” Id. § 2679(b)(1).
The Westfall Act does not provide immunity to an official
from a suit “brought for a violation of the Constitution of the
United States.” Id. § 2679(b)(2)(A). That preserves claims
against federal officers under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Hui, 559 U.S. at 807. The Act also does not provide
immunity from a suit “brought for a violation of a statute of
the United States under which such action against an
14 SALEH V. BUSH
individual is otherwise authorized.” 28 U.S.C.
§ 2679(b)(2)(B). Neither exception applies here.
But Plaintiff argues that Defendants’ actions were not
taken within the scope of their employment and that,
therefore, they are not entitled to immunity under the
Westfall Act in the first place. Plaintiff’s argument embraces
two distinct theories. The first theory is that Defendants in
this case acted outside the scope of their employment because
they (1) started planning the attack on Iraq before they ever
took office, (2) attacked Iraq out of personal motives, and
(3) were not employed to instigate an unlawful war. The
second theory is that the scope-of-employment inquiry under
the Westfall Act must be conducted with an eye toward the
United States’ treaty obligations. That is, the statute should
not be construed to allow an act to be deemed “official” when
the United States has entered into treaties condemning that
same act. We will address those two theories in turn, and we
will then address Plaintiff’s challenge to the district court’s
denial of her request for an evidentiary hearing concerning
the scope certification.
1. The Scope-of-Employment Test
“The Attorney General’s decision regarding scope of
employment certification [under the Westfall Act] is
conclusive unless challenged. Accordingly, the party seeking
review bears the burden of presenting evidence and
disproving the Attorney General’s decision to grant or deny
scope of employment certification by a preponderance of the
evidence.” Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993)
(per curiam) (citation and footnote omitted). “To rebut the
[scope] certification . . . , a plaintiff must ‘allege sufficient
facts that, taken as true, would establish that the defendant’s
SALEH V. BUSH 15
actions exceeded the scope of his employment.’” Wuterich
v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (brackets
omitted) (quoting Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.
Cir. 2003)). “[W]here a plaintiff fails to allege sufficient
facts to rebut the certification, the United States must be
substituted as the defendant . . . .” Id.
As noted above, when determining whether a federal
officer’s actions fall within “the scope of his office or
employment” for purposes of the Westfall Act, we apply “the
principles of respondeat superior of the state in which the
alleged tort occurred.” Pelletier, 968 F.2d at 876. We agree
with the parties that the respondeat superior law of the
District of Columbia applies in this case.
District of Columbia courts routinely “look[] to the
Restatement (Second) of Agency” in determining whether an
employee’s actions fall within the scope of employment.
Rasul v. Myers, 512 F.3d 644, 655 (D.C. Cir. 2008) (internal
quotation marks omitted), vacated, 555 U.S. 1083 (2008),
reinstated in relevant part, 563 F.3d 527, 528–29 (D.C. Cir.
2009) (per curiam). “The Restatement provides [that]:
‘(1) Conduct of a servant is within the scope of employment
if, but only if: (a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits; (c) it is actuated, at least in part, by a purpose to
serve the master[;] and (d) if force is intentionally used by the
servant against another, the use of force is not unexpectable
by the master. (2) Conduct of a servant is not within the
scope of employment if it is different in kind from that
authorized, far beyond the authorized time or space limits, or
too little actuated by a purpose to serve the master.’” Council
on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663
(D.C. Cir. 2006) (per curiam) (quoting Restatement (Second)
16 SALEH V. BUSH
of Agency § 228 (1958)). “District of Columbia law liberally
construes the doctrine of respondeat superior, at least with
respect to the first prong of the Restatement.” Kashin v. Kent,
457 F.3d 1033, 1039 (9th Cir. 2006) (ellipses omitted)
(quoting Stokes, 327 F.3d at 1216). “The test for scope of
employment is an objective one, based on all the facts and
circumstances.” Ballenger, 444 F.3d at 663 (brackets
omitted) (quoting Weinberg v. Johnson, 518 A.2d 985, 991
(D.C. Cir. 1986)).
Plaintiff claims that Defendants (particularly Wolfowitz
and Rumsfeld) were not acting within the scope of their
employment in carrying out the Iraq War because they started
planning the war before taking office. There are at least two
problems with this argument. First, the alleged tortious acts
of aggression—the invasion of Iraq—took place after
Defendants occupied public office, and what took place in the
late 1990s was not planning, but only advocacy. During most
of that time, neither Wolfowitz nor Rumsfeld could have
known that he would soon be in a position to help implement
his policy preferences. Second, pre-employment statements
of intent or belief do not take the later acts of public officials
outside the scope of their employment. Under Plaintiff’s
theory, every time a politician honors a campaign promise,
she could be considered to be acting outside the scope of her
employment. Or, if a passionate advocate for voting rights
were appointed to head the Civil Rights Division of the
Department of Justice, his or her bringing a lawsuit to enforce
voting rights would be viewed as outside the scope of his or
her employment.
Plaintiff makes a similar argument with respect to
Defendants’ motives, which bear on the third prong of the
Restatement test—whether an employee’s actions were
SALEH V. BUSH 17
“actuated, at least in part, by a purpose to serve the master.”
Plaintiff asserts that she has “alleged that Defendants were
solely motivated by personal, selfish purposes,” but that
assertion is not borne out by the factual allegations in the
second amended complaint. Plaintiff conflates a policy
preference or worldview—which is “personal” in the sense
that it may be deeply felt or tied to one’s sense of morality or
identity—that motivates one to advocate for certain positions,
with a desire to serve one’s individual interests. A federal
official would act out of “personal” motives and not be
“actuated . . . by a purpose to serve the master” if, for
instance, he used the leverage of his office to benefit a
spouse’s business, paying no heed to the resulting damage to
the public welfare. But that is not what Plaintiff has alleged.
Rather, she has alleged that Defendants were committed to
certain foreign policy objectives in which they believed.
Even if those alleged objectives or beliefs were misguided or
in contravention of international norms, the motives were not
“personal” in the scope-of-employment sense; Defendants’
conduct was “actuated, at least in part, by a purpose to serve
the master,” the United States. Ballenger, 444 F.3d at 663.
Finally, Plaintiff argues that Defendants “were not
employed to execute a pre-existing war.” But Defendants, as
members of the executive branch, were charged broadly with
guiding the United States’ foreign policy and with ensuring
national security. Dep’t of Navy v. Egan, 484 U.S. 518,
529–30 (1988). And Congress authorized Defendant Bush
“to use the Armed Forces of the United States as he
determine[d] to be necessary and appropriate in order to . . .
defend the national security of the United States against the
continuing threat posed by Iraq.” Authorization for Use of
Military Force § 3(a). The actions that Defendants took in
connection with the Iraq War were part of their official
18 SALEH V. BUSH
duties, even if some Defendants had hoped to be able to take
those actions years before taking office.
In summary, reading the Westfall Act in a straightforward
manner and applying District of Columbia respondeat
superior law to the facts alleged in the operative complaint,
we hold that Defendants’ alleged actions fell within the scope
of their employment.
2. Construing the Westfall Act With an Eye Toward
Treaty Obligations
Plaintiff next argues that the Westfall Act should not be
interpreted so as to regard as “official” an act condemned by
treaty. Plaintiff cites 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.) (appeal taken
from Q.B. Div’l Ct.) (U.K.), reprinted in 38 I.L.M. 581
(1999), in which the House of Lords ruled that former
Chilean leader Augusto Pinochet was not entitled to official
immunity for the role that he played in ordering acts of
torture and other violations of international law. Many of the
Law Lords reasoned that Pinochet’s acts could not be
considered official because the Convention Against Torture7
forbade such acts, and Chile was a party to that treaty.
38 I.L.M. at 595 (opinion of Lord Browne-Wilkinson); id. at
626–27 (opinion of Lord Hope); id. at 638–39 (opinion of
Lord Hutton); id. at 642–43 (opinion of Lord Saville). The
United States has signed several treaties and other
7 United Nations Convention Against Torture and Other Forms of
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
1465 U.N.T.S. 85.
SALEH V. BUSH 19
international agreements condemning aggressive war,8 and
Plaintiff argues that interpreting the Westfall Act to allow for
immunity in this case would conflict with those agreements.
This argument suffers 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. The Law Lords were tasked
with determining whether Pinochet’s actions could be
considered “official” as a matter of international law. The
effect of a treaty on that international-law analysis has little
bearing on that same treaty’s effect on the scope-ofemployment
analysis under domestic law.
Second, although we have suggested that ambiguous
statutes should be interpreted to avoid conflicts even with
non-self-executing treaties,9 Kim Ho Ma v. Ashcroft, 257 F.3d
8 Plaintiff cites the following treaties and agreements: the United
Nations Charter, June 26, 1945, 59 Stat. 1031, T.S. No. 993; the
Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis and Charter of the International Military
Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [London Charter];
the Charter of the International Military Tribunal for the Far East, Jan. 19,
1946, T.I.A.S. No. 1589; and the Kellogg-Briand Peace Pact, Aug. 27,
1998, 46 Stat. 2343, 94 L.N.T.S. 57.
9 The proposition that statutes should be construed to avoid conflicts
with non-self-executing treaties has been the subject of some debate by
both courts and commentators. See Fund for Animals, Inc. v. Kempthorne,
472 F.3d 872, 879 (D.C. Cir. 2006) (Kavanaugh, J., concurring) (opining
that “the canon against construing an ambiguous statute to abrogate a
treaty . . . should not apply in cases involving non-self-executing
treaties”); see also Rebecca Crootof, Note, Judicious Influence: Non-Self-
Executing Treaties and the Charming Betsy Canon, 120 Yale L.J. 1784,
1790–91 (2011) (arguing that ambiguous statutes should be read to avoid
conflicts with non-self-executing treaties). By contrast, there is no doubt
20 SALEH V. BUSH
1095, 1114 (9th Cir. 2001), the Westfall Act is not, in any
relevant way, ambiguous. With the Westfall Act—which was
enacted after the passage of each of the treaties and
agreements to which Plaintiff cites—Congress clearly
intended to grant federal officers immunity to the same extent
that the United States would have been liable for those
employees’ tortious acts under the FTCA (subject to
exceptions that are not relevant to today’s analysis).
Pelletier, 968 F.2d at 876. 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.
3. Denial of an Evidentiary Hearing
Plaintiff next argues that she should have been afforded
an opportunity to challenge the scope certification at an
evidentiary hearing. But because the allegations in the
operative complaint, taken as true, do not establish that
Defendants acted outside the scope of their employment, an
that when a self-executing treaty and a statute “relate to the same subject,
the courts will always endeavor to construe them so as to give effect to
both, if that can be done without violating the language of either.”
Whitney v. Robertson, 124 U.S. 190, 194 (1888).
SALEH V. BUSH 21
evidentiary hearing would be a futile exercise.10 See
McLachlan, 261 F.3d at 910–11 (finding no abuse of
discretion in district court’s denial of hearing to challenge
scope certification “because[,] even viewing the evidence in
the light most favorable to [the plaintiff] and accepting his
version of events, dismissal was appropriate”); see also
Wuterich, 562 F.3d at 381 (holding that a plaintiff “may, if
necessary, attain ‘limited discovery’ to resolve any factual
disputes over” the scope-of-employment issue, but only if he
or she “alleg[es] sufficient facts that, taken as true, would
establish that the defendant’s actions exceeded the scope of
[his or her] employment” (brackets omitted) (quoting Stokes,
327 F.3d at 1214–15)). Accordingly, the district court did not
abuse its discretion in denying Plaintiff an evidentiary
hearing to challenge the scope certification.11
B. Jus Cogens Violations and Domestic Official Immunity
Finally, Plaintiff argues that Defendants cannot be
immune under the Westfall Act because she alleges violations
of a jus cogens norm of international law. “[A] jus cogens
norm, also known as a ‘peremptory norm’ of international
law, ‘is a norm accepted and recognized by the international
community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character.’” Siderman de Blake v. Argentina, 965 F.2d 699,
10 Plaintiff did not seek leave to amend the complaint for a third time.
11 Plaintiff also argues that she was entitled to a jury determination of
the correctness of the scope certification. But a judge, not a jury, is the
“appropriate trier of any facts essential to certification.” Osborn, 549 U.S.
at 252.
22 SALEH V. BUSH
714 (9th Cir. 1992) (quoting Vienna Convention on the Law
of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 332).
“Whereas customary international law derives solely from the
consent of states, the fundamental and universal norms
constituting jus cogens transcend such consent.” Id. at 715.
“Because jus cogens norms do not depend solely on the
consent of states for their binding force, they enjoy the
highest status within international law.” Id. (internal
quotation marks omitted). “International law does not
recognize an act that violates jus cogens as a sovereign act.”
Id. at 718.
Plaintiff contends that Congress simply cannot immunize
a federal official from liability for a jus cogens violation. In
effect, Plaintiff argues that (1) there is a jus cogens norm
prohibiting the provision of immunity to officials alleged to
have committed jus cogens violations12 and, (2) insofar as the
Westfall Act violates that norm, it is invalid. The argument
is premised on the idea that “[i]nternational law does not
recognize an act that violates jus cogens as a sovereign act,”
so that an official who is alleged to have engaged in such an
act cannot cloak himself in the immunity of the sovereign.
Siderman de Blake, 965 F.2d at 718.
We assume, without deciding, that the prohibition against
aggression is a jus cogens norm.13 But even assuming that the
12 Or, alternatively, Plaintiff contends that there is a prohibition on
defining an official’s scope of employment under domestic law to include
actions that violate jus cogens norms.
13 See, e.g., Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory
of Jus Cogens, 34 Yale J. Int’l L. 331, 333 (2009) (describing the
prohibition on aggression as a “recognized peremptory norm[]”).
SALEH V. BUSH 23
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 caselaw. 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) (“[D]omestic sovereign immunity and foreign
sovereign immunity are two separate concepts, the first based
in constitutional law and the second in customary
international law.”). Given those different origins, it should
be easier for the violation of a jus cogens norm to override
foreign sovereign immunity than domestic official immunity.
Therefore, our holding in Siderman de Blake—that Congress
can provide immunity to a foreign government for its jus
cogens violations, even when such immunity is inconsistent
with principles of international law—compels the conclusion
that Congress also can provide immunity for federal officers
for jus cogens violations.14

* * *

14 Siderman de Blake also forecloses the alternative formulation of
Plaintiff’s argument—that an official’s scope of employment under
domestic law cannot include actions that violate jus cogens norms. We
held in Siderman de Blake that actions violating jus cogens norms,
although not recognized as sovereign acts under international law, could
constitute sovereign acts for purposes of the Foreign Sovereign
Immunities Act. 965 F.2d at 718–19. Similarly, Defendants’ alleged
violations of a jus cogens norm can be considered to be within the scope
of their employment as a matter of domestic law.

Outcome: that Congress also can provide immunity for federal officers
for jus cogens violations.14
CONCLUSION
Defendants are entitled to immunity under the Westfall
Act. Accordingly, the United States was properly substituted
as the sole defendant. Because Plaintiff did not exhaust her
administrative remedies against the United States, the district
court properly dismissed the case for lack of subject matter
jurisdiction.
AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: