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Media Alerts - Saleh v. Bush - Ninth Circuit
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March 9, 2017
  Saleh v. Bush - Ninth Circuit
Headline: Ninth Circuit panel holds that Westfall Act provides immunity from liability under the Alien Tort Statute to high ranking Bush Administration officials.

Areas of Law: Westfall Act, Immunity of Government Officials

Issues Presented: (1) Whether the Westfall Act provides absolute immunity to government officials for alleged violations of the Alien Tort Statute. (2) Whether Congress can grant immunity from liability to federal officials for a jus cogens violation.

Brief Summary: Appellant Sundus Shaker Saleh ("Saleh") filed a class action lawsuit against a number of Bush Administration officials ("Appellees"), alleging that they conspired to wage a war of aggression against Iraq, a violation of the "law of nations" under the Alien Tort Statute. Pursuant to the Westfall Act, the district court substituted the United States as the only defendant and dismissed the case due to Saleh's failure to exhaust administrative remedies as prescribed by the Federal Tort Claims Act. Saleh appealed, arguing that Appellees did not enjoy immunity under the Westfall Act and, even if they did, Congress cannot grant immunity to officials for a jus cogens violation. The Ninth Circuit panel affirmed the district court's decision to dismiss the case.

Significance: The Westfall Act provides immunity to federal government officials for claims arising from actions they performed in the course of their employment, even if those actions violate international law.

Extended Summary: In 2003 Kurdish Army troops allied with the United States and participating in the Iraq war allegedly forced Saleh and members of her family to leave their home and relocate to Jordan. She filed a class action lawsuit representing "all innocent Iraqi civilians who, through no fault of their own, suffered damage" as a result of the Iraq war. Her complaint alleged that Appellees, high ranking members of the Bush Administration, began planning an invasion of Iraq as early as 1997 and that they used the September 11, 2001 terrorist attacks as a pretext to convince the public and Congress of the need to launch the war on Iraq. Saleh alleged that Appellees often used fabricated information to support their position. The complaint claimed Appellees were liable under the Alien Tort Statute for an alleged violation of the "law of nations."

The United States filed a certification that Appellees were acting within the scope of their employment. The district court agreed and substituted the United States as the only defendant. The court then dismissed Saleh's suit without prejudice, finding that she failed to exhaust her administrative remedies as mandated by the Federal Tort Claims Act. Saleh then filed an amended complaint. The district court again substituted the United States and then dismissed the lawsuit with prejudice. Appellee moved for an evidentiary hearing to contest the certification that Appellees were acting within the scope of their employment but the district court denied the motion. This appeal followed.

The Ninth Circuit panel affirmed the district court's decision that Appellees were entitled to immunity under the Westfall Act and that the United States was the only proper defendant. The Westfall Act grants federal officials absolute immunity for torts committed in the course of their employment. The Act requires courts to employ the principles of respondeat superior in the state where an alleged tort occurred to determine the scope of employment inquiry. The policy behind this grant of immunity is to prevent the fear of potential litigation from affecting the decision making process of those involved in government. Under the Westfall Act, an official who is sued and believes he is entitled to immunity is instructed to forward all documents served to him to his supervisor who then must give copies to the United States Attorney General. The Attorney General investigates the matter and makes a determination as to whether the sued government official was working within the scope of his employment. If the determination is made that he was, the Attorney General issues a scope certification which changes the action against the government official into one against the United States and precludes any other civil action against the government official.

Saleh asserted two arguments to support her claim that Appellees were not working within the scope of their employment when they conspired to make war against Iraq. The first was that the preparation for the war began before the Appellees took office as government officials, the attack was incited by personal motives, and Appellees were not employed to start an illegitimate war. The second was that immunity under the Westfall Act must be analyzed in light of the treaty obligations of the United States.

The panel rejected both arguments. It applied District of Columbia respondeat superior principles to find Appellees' actions were committed within the scope of their employment as the Iraq war did not begin until after Appellees took office. Appellees' actions promoting the war prior to their taking office was not planning for the war, but merely advocacy. The panel further found Saleh's claim that the motives for the war were personal was not supported by the factual allegations in her complaint. Finally, the panel held that, as members of the Executive Branch of government, Appellees were authorized to act to ensure national security and as such their actions fell within their official duties. As for Saleh's second argument, the Ninth Circuit panel noted that the case she relied on was not instructive because the scope of employment test used there was created by international law and not one of a domestic nature as in this case. Further, the panel noted that the unambiguous language of the Westfall Act evidences Congress's specific intent to grant immunity to federal officers.

The Ninth Circuit panel also rejected Saleh's contention that the district court erred in denying her motion for an evidentiary hearing to challenge the scope certification by the Attorney General. The panel reasoned that because the allegations in Saleh's complaint viewed in the light most favorable to her were not enough to show that Appellees had acted outside the scope of their employment, such a hearing was unnecessary.

Finally the panel also rejected Saleh's argument that Congress cannot provide immunity to a federal government official for violations of a jus cogens norm of international law. A jus cogens norm is a norm acknowledged by international law from which no derogation is permitted. Without deciding whether the prohibition of aggression is a jus cogens norm, the panel concluded that Saleh's argument conflicted with United States case law. Precedent cases dealing with sovereign immunity of officials reveal that Congress can provide immunity to foreign government officials despite inconsistencies with international law. This precedent supported the conclusion that Congress can do the same for federal officers when they violate jus cogens norms.

To read the full opinion, please visit:

Panel: Susan P. Graber and Andrew D. Hurwitz, Circuit Judges, and Richard F. Boulware, District Judge (sitting by designation)

Argument Date: December 12, 2016

Date of Issued Opinion: February 10, 2017

Docket Number: 15-15098

Decided: Judgment affirmed.

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

Patrick G. Nemeroff (argued), and Matthew M. Collette, 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.

Author of Opinion: Judge Graber

Circuit: Ninth Circuit

Case Alert Author: Maria Vittoria

Case Alert Supervisor: Philip L. Merkel

    Posted By: Glenn Koppel @ 03/09/2017 01:42 PM     9th Circuit  

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