848 F.3d 880
9th Cir.2017Background
- Saleh, an Iraqi civilian, sued former high-ranking Bush Administration officials under the Alien Tort Statute (ATS), alleging they planned and executed an unlawful war of aggression against Iraq causing harm to Iraqi civilians.
- Defendants included President Bush, Vice President Cheney, Secretaries Rumsfeld, Rice, Powell, Wolfowitz, and others; the United States later was joined as a defendant via Westfall Act substitution.
- The Attorney General issued scope certifications under the Westfall Act, substituting the United States as the sole defendant and shielding the individual officials from personal liability.
- The district court dismissed the FTCA claim for failure to exhaust administrative remedies and denied Saleh an evidentiary hearing to challenge the scope certifications; Saleh appealed both rulings.
- The Ninth Circuit assumed, without deciding, that aggression could be an ATS tort but resolved the case on statutory immunity grounds: Westfall Act immunizes the officials and substitution was proper, so FTCA exhaustion failure deprived the court of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged planning and waging of the Iraq War falls within defendants’ scope of employment for Westfall Act immunity | Saleh: officials acted outside scope because planning began pre-office, actions were personal/self-serving, and they were not employed to start an unlawful war | Defendants: actions were within official foreign-policy and national-security duties and thus within scope despite pre-office advocacy or policy motives | Held: Actions as alleged fall within scope under D.C. respondeat superior and Westfall Act; certification stands |
| Whether treaties or jus cogens norms (e.g., prohibition on aggression) bar Westfall Act immunity or scope-of-employment characterization | Saleh: treaties and jus cogens should prevent treating acts condemned by international law as "official" or immunizable | Defendants/US: Westfall is unambiguous domestic statute granting immunity; treaties do not nullify Congress’s choice to grant immunity in domestic courts | Held: Treaties and alleged jus cogens norms do not negate Westfall Act immunity; Congress may grant immunity notwithstanding international-law tensions |
| Whether alleged jus cogens violations (crime of aggression) defeat domestic official immunity | Saleh: jus cogens violations cannot be immunized; domestic law must recognize no sovereign act for jus cogens breaches | Defendants/US: Siderman shows Congress can create immunity even for acts inconsistent with international norms; domestic official immunity differs from foreign sovereign immunity | Held: Even assuming aggression is jus cogens, Congress can immunize officers under domestic law; immunity applies |
| Whether Saleh was entitled to an evidentiary hearing to challenge the Attorney General’s scope certification | Saleh: factual disputes warrant a hearing or limited discovery to rebut certification | Defendants/US: Complaint’s allegations, taken as true, do not rebut certification; a hearing would be futile | Held: Denial of hearing was not an abuse of discretion because Saleh’s allegations failed to establish that actions were outside the scope of employment |
Key Cases Cited
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (framework for recognizing actionable ATS norms)
- Westfall v. Erwin, 484 U.S. 292 (1988) (basis for statutory official immunity and rationale for Westfall Act)
- Osborn v. Haley, 549 U.S. 225 (2007) (Westfall Act substitution effect: action against employee becomes action against the United States)
- Hui v. Castaneda, 559 U.S. 799 (2010) (scope-certification effect and substitution under Westfall Act)
- Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992) (discussion of jus cogens and Congress’s power to grant immunity despite international-law conflicts)
- McLachlan v. Bell, 261 F.3d 908 (9th Cir. 2001) (standard for reviewing denials of evidentiary hearings and accepting complaint allegations on dismissal)