F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S U N D U S S H A K

E R S A L E H , on behalf of herself and those similarly situated,

Plaintiff-Appellant
,

v.

G E O R G E W. B U S H ; R I C H A R D B

. C H E N E Y ; D O N

A L D R U M S F E L D ; C O N D O L E E Z Z A R I C E ; C O L I N P O W E L L ; P A U L W O L F O W

I T Z ; D O E S 1–10, inclusive; and the U N I T E D S T A T E S O F A M E R I C A , Defendants-Appellees. No. 15-15098

D.C. No. 3:13-cv-01124-J ST

OPI NI ON

A ppeal from the United States District Court for the Northern District of California J on S. Tig ar, District J udg e, Presiding

Arg ued and Submitted December 12, 2016 San F rancisco, California

F iled F ebruary

10, 2017S A L E H V

. B U S H

2

B efore: Susan P. Graber and Andrew D. Hurwitz , Circuit J udg es, and Richard F . B oulware, * District J udg e.

Opinion by

J udg e Graber

SUMMARY * *

Westf all Act / Im m unity

The panel affirmed the d istrict c ourt’s dismis s a l
, d ue to plaintif f ’ s f ailure to e x haust her administrative remedies, o f her action after the district court, pursua nt to the W estfall Act, substituted forme r officials of the President Georg e W. B ush administration for the U nited States a s t h e sole defendant.

Plaintiff a lleg e d that former officials of the Preside n t G e o r g e W. B ush administration eng ag ed in the war ag ainst I raq in violation of the Alien Tort Statute. The district court held that plaintiff h ad not ex hausted her administrative remedies as required by

the F ederal Tort Claims Act.

The panel held that the individual defenda n t s were entitled to official immunity under t h e W estfall Act, which accords federal employ

ees immunity from common-law tort claims for acts undertaken in the course of t h e i r official

* T h e Ho n o rab le R i c h ard F. Bo u lw are, Un ited States District J u dg e f o r th e District o f

Nev ad a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A L E H V

. B U S H 3

duties. Apply ing the plain lang uag e of the W estfall Act and District of Columbia’s respondeat s u perior law to the facts alleg ed in the operative compla i nt, the panel held that the individual defendants’ alleg ed actions fell within the scope o f their employ

ment. The panel further held that the treaties a nd charters c ited by plaintiff did not a lter its conclusion that the W e stfall Act, by its plain terms, immuniz ed defendants from suit. F inally
, the panel held that th e d i s t r ict court did not abuse its discretion in deny ing plaintiff an evidentiary h earing
t o challeng e the Attorney General’s scope certificat i o n (wherein the Attorney General determined that the employ ees

were acting within the scope of their e m p loy ment a nd transformed the action into one ag ainst the United States).

The panel rejected pla i ntiff’s arg ument that defendants could not be immune under the W estfall Act because p laintiff alleg ed violations of a jus cogens norm of international law. A j u s cogens norm is recog niz ed by the international community as a norm from which n o derog ation is p ermitted and which can b e modified only by a subs e q u e n t norm o f
g eneral international law. The panel held that Cong ress can also provide immunity for federal officer s f o r jus cogens violations pursuant to the reasoningin S iderman de Blake v. Argentina
, 9 65 F .2d 699 ( 9th Cir. 1992) (holdi n g that Cong r ess c an p rovide immunity to a foreig n g overnment for its jus cog e ns v iolations, even when such immunity is inconsistent with principles of international law).S A L E H V

. B U S H

4

COUNSEL

Dave I nder Comar (arg

ued), Comar L aw, San F rancisco, California, for Plaintiff-Appellant.

Patrick G. N emeroff (arg ued) and Matthew M. C o l l ette, Attorney s, Appellate Staff; Melinda H a ag , United States Attorney ; B e njamin C. Miz er, Principal Dep u t y Assistant Attorney General; Civil Division, United States Department of J ustice, W ashing ton, D.C.; for Defendants-Appellees.

J erome Paul W alling ford, San Dieg o, California, f or Amicus Curiae L awy ers for I

n ternational L aw.

Rajeev E. A nanda, New York, New York, for Amicus Curiae Planethood F oundation.

OP INION

GRAB ER, Circuit J udg e:

Plaintiff Sundus Shaker Sale h sues several individuals who served as hig h-ranking o fficials in the administration o f President Georg e W

. B ush. Plai n tiff claims that the f ormer officials co n s p i r ed to eng ag e in, and did eng ag e in, a war o f
ag g r ession ag ainst I raq 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 W es t f

a ll Act, 28 U.S.C. § 2679(d)(1), and then dismissed the case because Plaint i f f h a d not ex hausted her administrative remedies as required by the F ederal T o rt Clai m s Act (“F TCA”). Plaintiff arg ues that substitution o fS A L E H V

. B U S H 5

the United States was improper becaus e the former officials

are not entitled to official immun i t y

. B ecause we conclude that the individu a l d e fendants are entitled to official immunity under the W e stfall Act and that the United St a tes properly was substituted as the sole defendant, we affirm.

F ACTUAL AND PROCEDURAL HI STORY 1

I n 2003, Kurdish Army troops forced Plaintiff and her family to le a ve their home in J a lawla, I r aq, and flee to B ag hdad. The troops, who were alig ned with t h e United States, w ere takin g p a r t in what h as become known as the I raq W ar, a military action that officially beg an on March 19, 2003, but that, Plaintif f c laims, Defendants 2 had been planning f

or y ears. Plaint i f

f e ndured many hardships in B ag hdad. Eventually she was forced to leave I raq and move t o J ordan. I n this case, she seeks to represent “a class o f
persons consisting of all innocent I r aqi civilians who, throug h no fault of their own, suffered damag e” from the I raq W ar.

1 W e reco u n t th e f

acts as alleg ed i n P lain tif f ’ s seco n d am en ded

co m plain t. S ee McLa ch la n v. Bell
, 2 6 1 F.3 d 9 0 8
, 9 0 9 (9 t h C i r

. 20 0 1) (h o ld i n g t h at, w h en rev i ew in g a d ism issal in th e ab sen ce o f an ev i den tiary h earin g , “ w e accep t as tru e th e f actu al alleg atio n s in

th e co m plain t”).

2 T h e d ef en d an ts are f

orm er P resid en t G eo rg e W

. B u sh
, f orm er Vice P res i d en t Rich ard B

. Ch en ey , f orm er Secretary o f Def en se Do n ald Ru m sf eld
, f o rm er Natio n al Secu rity A d v iso r an d S ecretary o f State Co n d o l eezza Rice, f

o rm er Secretary of State Co lin P o w ell, f o rm er Dep u ty Secretary o f Def

en se P a u l W o lf

o w itz, 1 0 oth er f

o rm er h ig h

- ran k in g

o f f icials in th e B u sh A d m in istratio n , an d th e Un ited States. In th is

o p in io n , w e u se “ Def

en d an ts” to ref

er o n ly to th e in d i v id u al d ef en dan ts,

w h o w ere th e n am ed d ef

en d an ts b elo w

. W e ref

er to th e Un i ted S tates,

w h ich w as su

bstitu ted as th e so le d ef

en d an t, as th e Un ited States.S A L E H V

. B U S H

6

Plaintiff claims that Defenda n t s Cheney
, Rumsfeld, a nd W o lfowitz beg an advocating for an invasion of I raq and f o r the removal of I raqi President Saddam Hussein f r o m p o wer

as early a s 1997. I n J anuary 1998, Rumsfeld and W olfowitz
sent President Clinton a letter urg ing him to “implem e nt a

‘ strategy for removing Saddam’s regime from p ower ,’ which included a ‘willing ness to undertake m i l i tary action a s diplomacy is clearly failin g. ’ ” (Emphasis in complaint.) They sent a similar letter to Speaker o f the Ho u s e Newt Ging rich and Senate Majority L e ader T rent L ott later that
y ear.

Defendant B u sh b ecame President in J anuary 2001, a n d appointed the other Defe ndants to hig h-ranking positions within his a dministration. A ccording to Plaintiff, Defendants almost immediately beg an to discuss a possible invasion a nd occupation of I raq, w ith Defendant R u msfeld stating at an early N ational Security Council meeting that “what we really

w a n t t o think about is g oing after Saddam.” As thenTreasury Secretary Paul O’Neill later put it:

F rom the start, w e were building the case ag ainst Hussein and looking at how we could take h im out and chang e I raq into a new country

. And, if we did that, it would solve
every thing

. I t was al l a b out finding a way to d o i t

. T hat was the tone of it. The Pres i d e n t say ing
, “F ine. Go find me a way to do this.”

(Emphasis in complaint.)

According to Plaintiff, the Se p t ember 11, 2001 attacks provided Defendants with a pretex t to launch an invasion of I raq. D efendants W o lfowitz a nd Rumsfeld “openly pushedS A L E H V

. B U S H 7

for war ag ainst I r a q” on the d ay of the attacks, despite the lack of evidence ty ing I raq to the a t t acks. Defendant B ush

was less e ag er to take action without evidence o f a link b e t w een I raq and the September 1 1 attackers. He a s k e d various officials to “g o back over every thing ” to try to find evidence t h at Saddam Hussein had been involved with Al Qaeda. Over the course o f the nex t y ear or so, Def e n dants beg an planning for the invasion of I raq, even as they strug g led to find such a link.

B e g inning around Aug ust 2002, Defendants alleg edly mounted a coordinated campaig n to c o n vince “the public, the Cong r ess and the allies of the need to confront the threat from Saddam Hussein.” As part of that campaig n, Defendants a nd others “continually used fabricated intellig ence from unreliable sources in order to p rep the public for a n invasion of I raq.” F or instance, Defendant B ush claimed i n h i s 2 003 State o f the Union address that I raq had tried to “obtain larg e quantities of u ranium f

r om A frica,” despite the fact that this claim was “unconfirmed and hig hly u nlik e l y

. ” During that time period, Defend ants a lso continued to plan for an invasion of I raq. A ccording to Plai n tiff, Defendants were committed to the invasion w hether or n ot the United Nations

a p p r oved of the action a nd whether or not United Natio n s inspectors uncovered evidence that I r aq was developing nuclear weapons.

On March 7, 2003, I nternational Atomic Energ y Ag ency Director G e n e r al Mohamed ElB aradei “reported to the U N Security Council that there w as no indication ‘of r e s u m ed nuclear activities,’ ‘that I raq has attempted t o i m p o rt uranium,’ [or] ‘that I raq h as a t tempted to import aluminum tubes for use in centrifug e enrichmen t

. ’ ” Nonetheless, less than two weeks later, the Unit e d S t a tes invaded I raq.S A L E H V

. B U S H

8

Cong r ess authoriz e d the use of military force to “defend the national security of the United States ag ainst the c o ntinuing threat posed by I raq.” Authoriz a tion for Use of Military F orce Ag ainst I raq Resolution of 2002, Pub. L

. No. 107-243, 116 Stat. 1498 (“Authoriz a t i o n for Use of Military F orce”), but Defendants did not secure United Nations authori z ation for the war.

Plaintiff broug ht this action in 2013. She alleg e s that Defendants’ conduct in p lanning and ex ecuting the I r aq War amounted to the “crime of ag g ression” and a conspiracy to commit the crime of ag g r e ssion, 3 which she claims was a

v i o l a t i o n o f the “law of nations” within the meaning of the ATS. After she f

i l e d an amended complaint in September 2013, the United Stat e s f iled a certification that Defendants ha d b ee n “ a cting w ithin the scope o f their federal o ffice o r employ ment at the time of the incidents [ a t issue] in this matter.” Under 28 U.S.C. § 2 679(d)(1 )
, the United States

was then substituted as the sole defendant. Th e r e a f ter, the amended co m p laint was dismissed because Plaintiff h ad failed to ex h aust her administrative r emedies as required b y the F TCA, 28 U.S.C. § 2 675(a). Plaintiff filed a second

3 L ik e P lain tif

f
, w e u se th e sh o rth an d t erm “ ag g ressio n ” to r e fe r t o b o th ag g ressio n itself an d co n s p iracy to co m m it ag g ressio n , b o th of w

h ich Def en d an ts are alleg ed to h av e en g ag ed in

. Fo r p u rp o ses o f th is case, w e d ef in e ag g ressio n as th e w ag in g o f u n p ro v o k ed w ar. S

ee, e.g

. , Dep o sitary No tif icatio n , A m en d m en ts to t h e R o m e Statu te of t h e In tern atio n al Crim in al Co u rt o n th e C rim e of A g g ressio n , Ref eren ce C.N.6 5 1

. 2 0 1 0 (No v

. 2 9
, 2 0 1 0 ) (d ef

in in g ag g ressio n in a sim ilar, th o u g h m o re co m p lex
, w ay ). A slig h tly

d if f eren t d ef in itio n o f ag g ressio n

is “ th e u se o f

m ilitary f o rce as an in s tru m en t o f ad v an cin g n atio n al po licy .” Gran t M. Daw so n , Defin in g S

u b sta ntive Crimes W

ith i n th e S ub ject M a tter Ju risd i ctio n o

f th e In tern a tio n a l Crimin a l Co u rt : Wh a t is th e Crime o f Ag gressio n ?
, 1 9 N.Y.L

. Sch

. J

. I n t ’l & C o m p

. L

. 41 3
, 4 32 (2 00 0 ). Ou r an aly sis d oes

n o t d ep en d o n

th e p recise d ef

i n itio n o f ag g ressio n

.S A L E H V

. B U S H 9

a mended complaint. The United States ag ain filed a “scop e certification,” and the district c o urt ag ain substituted the United States and d ismissed the action, thi s time with prejudice. The district court a lso d e n i ed Plaintiff’s motion for an evidentiary hearing to challeng e the scope certification. Plaintiff timely appeal s both the dismissal of the action a nd the denial of her motion for an evidentiary hearing

.

STANDARDS OF REVI EW

“W e review the dismissal [ f o r lack of subject matter jurisdiction] and the denial of the challeng e to certification de

novo.

. . . W e review the decis i o n w hether to c onduct an

e videntiary hearing for abuse o f discretion.” McLachlan v. Bell , 261 F

. 3d 908, 910 (9th Cir. 2001) (footnote omitted).

D I SCUSSI ON

The Alien Tort Statute g rants “district courts

. . . orig inal jurisdiction of any civil action by a n a lien fo r a t o r

t only
, committed in violation of the law of nations o r a treaty of the United States.” 28 U.S.C. § 1350. Not every violation of the law of nations g ives rise to a claim that c an be broug ht under the A TS. Rather, “any claim based on the present-day law o f

n a t i o ns [ must] rest on a n o rm of international character accepted by the civiliz ed world and defined with a specificity comparable to the features of the 18th-century p a radig ms” that the drafters o f the ATS had in mind—“violation of safe conducts, inf

r i ng ement of the rig hts of ambassadors, a nd piracy .” Sosa v. Alvarez-Machain
, 542 U.S

. 692, 724–25 (2004). The set of “AT S t o r t s”—violations of norms o f international law g iving r ise to claims co g niz able under the ATS—is, therefore, not froz en in time, but the Supreme Court has instructed us to b e wary of add i n g t o that set. See id. atS A L E H V

. B U S H

10

729 (“[ T] he door to further independent judicial recog nition of actionable international norms

. . . is still aja r s u b j e ct to vig ilant doorkeeping
, and thus open to a narrow c l a s s o f international norms today .”). Perhaps not surprising ly , only

a f ew new ATS torts have been recog niz ed by f e deral appellate courts since S

o s a w as decided. See, e.g. , Doe I v

. N e s tle U SA, I nc. , 766 F .3d 1013, 1022 (9th Cir. 2014 ) (holding that a violation of the “prohibition ag ainst slavery ”
g ives 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

. . . ag ainst nonconsensual human medical

ex p erimentation” is an ATS tort).

Plaintiff as k s us to recog niz e a violation of the norm ag ainst ag g ression as an ATS tort. We need not decide that issue. Assuming
, without deci d i n g , that eng ag ing in
ag g r ession constitutes a

n ATS tort, 4 Plaintiff’s claims ag ainst Defendants n onetheless fail, because Cong ress has g ranted Defendants official immunity from thos e claims. The only
proper defendant in this case is therefore the U n i t e d States, and Plaintiff’s claims ag ainst the U nited States are barred because Plaintiff failed to ex h aust administrative remedies a s required by the F TCA.

W e first address the q

uestion whether Defendants a re entitled to immunity under the terms of the W estfall Act. W e then ad d r e ss Plaintiff’s arg ument that, even if the W estfall

4 B ecau se w e reso lv e th is case o n th e g ro u n d th at P l a i nt i f f f ailed to

ex h au st ad m in istrativ e rem e d i es as req u ired b y th e F T CA

— a j u risd ictio n al req u irem en t u n d er o u r c a s elaw
, Bra d y v. Un ited Sta tes , 2 1 1 F.3 d 4 9 9
, 5 0 2 (9 th Cir. 20 0 0)—w e do n o t ad d ress an y o th er th resh old issu es. S ee Ru h r g a s AG v. Ma ra th o n Oil C o

. , 5 2 6 U.S. 5 7 4
, 57 8 (1 9 9 9) (h o ld i n g th at “ th ere is n o u n y ield in g j u risd ictio n al h ierarch y ”).S A L E H V

. B U S H 11

Act purports to confer immunity on Defendants, immunity
cannot a ttach because Plaintiff ha s a l leg ed that Defendants violated a jus cogens norm of international law. 5

A. Defendants’ Official Immunity Under the W e stfall Act

“The concept of the i m m u n ity of g overnment officers from personal liabilit y spring s from the same root considerations that g enerated the doctrine of s o v ereig n immunity

. W hile the latter d octrine—that the ‘K i n g can do

no wrong ’—did not protect all g overnment offi c e r s from personal liability
, the common law soon recog niz ed the

n e c e s sity of permitting officials to perform their official functions free from the threat of suits for personal liability

. ” Scheuer v. R hodes
, 416 U.S. 232, 2 3 9 (1974), abrogated on other grounds by Harlow v. Fitzgerald
, 457 U.S. 800 (1982). “[ T] he scope of absolute official immunity affor d e d f ederal employ e es is a matter o f federal law, to be formulated by the
courts in the absence of leg islative a c t i o n by Cong ress.” W estfall v

. Er w in
, 484 U.S. 292, 295 (1988) (internal quotation marks omitted), superseded on other grounds by Pu b

. L

. No. 1 00-694, 102 Stat. 4563 (1988), c odified at

5 P lain tif f also co n ten d s th at j u d i cial esto p p el sh o u ld b ar th e Un ited States a n d D ef

en d an ts f ro m arg u in g th at D ef

en d an ts are en titled to im m u n ity
, b ecau se th e Un ited States to o k a d if f eren t p o sitio n d u rin g th e Nu rem berg T rials f

o llo w in g W o rld War II. W e are n o t p ersu ad ed

. T h e im m u n ity claim ed b y Def

en d an ts a n d t

h e Un ited States co m es f ro m th e W est fa l l A ct, w

h ich did n o t ex ist at th e tim e o f th e Nu rem b erg T rials. T h u s, ev en assu

m in g th at th e cu rren t p o sitio n o f th e U n ited States w ere clearl y in co n sisten t w ith th e p o s itio n tak en at th e Nu rem b erg T rials, th e

n ew p o s itio n re s t s o n a n in terv en in g ch an g e in law an d th eref o re i s n o t

su b j ect to j u d i cial esto p p el. S ee Lo n ga b erg er Co

. v. Ko lt
, 5 86 F.3 d 4 5 9
, 4 7 0 (6 th Cir. 2 0 0 9 ) (co l lectin g cases), a b r o g a ted o n o th er g ro u nd s b y Mo n ta n ile v. Bd

. o

f T r s

. o f Na t’l Eleva to r In d

u s. Hea lth Ben efit Pla n , 1 3 6 S. Ct. 6 5 1 (2 0 1 6 ).S A L E H V

. B U S H

12

28 U.S.C. § 2679(d). “The purpose of such official immunity is not to p rotect an e r r i n g official, but to insulate the decisionmaking process f r o m the harassment o f prospective litig ation.” Id.

The W estfall Act, 6 which was enacted in response to the Supreme Court’s d e c i s ion in W estfall
, “accords federal employ e es absolute immunity from c ommon-law tort c laims arising out of acts they und e r t a ke in the course of their official duties.” Osborn v. Haley
, 549 U.S. 225, 229 (2007). Th e immunity ex tends to b oth “neg lig e nt” and “wrong ful” “act[ s] or omission[ s] of any employ e e . . . acting within the
scope of his office or employ ment.” 28 U.S.C. § 2 6 79(b)(1). The Act does not s e t out a test to determine whether an employ e e was “ actin g within the scope of h is office o r employ ment”; rather, Cong ress i n t e nded that courts would apply “ the principles of respondeat superior of the state in which the alleg ed tort occurred” in analy z ing t h e s cope-ofemploy ment issue. Pelletier v. Fed. H ome Loan Bank of

S .F.
, 968 F .2d 865, 876 (9th Cir. 1992). The s a m e a n aly sis was employ e d before p a ssag e of the Westfall Act t o determine whether the U nited States c o uld b e l i a b le for an e mploy ee’s torts under the F TCA. Id. at 875–76.

The W estfall A ct provides a p rocedure by w hich the federal g overnment determines whethe r an employ ee is entitled to immunity

. W hen a current or former federal employ e e is sued and the employ ee b e lieves that he is entitled
t o o ff icial immunity
, he is instructed to “deliver

. . . a l l

6 T h e A ct is o f

f icially called th e Fed eral Em plo y ees L iab ility Ref

o rm

a n d T o rt Co m

p en satio n A ct o f 1 9 88
, bu t it is “ co m m o n ly k n ow n as th e W estf all A ct.” Gu tierrez d

e Ma rtin ez v. La m a g n o , 5 1 5 U.S. 4 17
, 4 1 9

– 2 0 (1 9 9 5).S A L E H V

. B U S H 13

process served upon h im

. . . to his immediate supervisor” o r other desig nated official, who then “furnish[ es] copies of the pleading s and process therein to the United States attorney for the district embracing the p lace wherein the proceeding is broug ht, to the Attorney General, and to the head of his employ ing F ederal a g ency .” 28 U.S.C. § 267 9 (c ). The Attorney General then d etermines whet h e r “the defendant employ e e w as a cting within the scope of his o ffice o r employ ment a t the time of the incident out of which the claim arose.” Id. § 2 679( d ) (1). I f so, the A ttorney General issues

a “scope certification,” wh i ch “transforms an action ag ainst

an individual f

ederal employ ee into o ne ag ains t t h e United States.” H

ui v

. Castaneda
, 559 U.S. 799, 810 (2010). The “United Stat e s shall be substituted as the party defendant,” 28 U.S.C. § 2679(d)(1), and the em p l o y e e is released from
any liability : “The remedy a ga i n s t t he United States

. . . is

ex c lusive o f any other civil action or p roceeding for money damag es by reason o f the same subjec t matter ag ainst the employ e e whose act or o mission g ave ris e to the claim o r ag ainst the estate of such employ ee. Any other civil action o r proceeding for money damag e s arising o u t o f or relating to the same su b

j e c t matter ag ainst the employ ee or the employ e e’s e state is p recluded without reg ard to when the act or omission occurred.” Id. § 2679(b)(1).

The W estfall Act does n ot p rovide immunity to an official from a suit “broug ht for a violation of the Constitution of the Un i t e d States.” Id. § 2 679(b)(2)(A). That preserves c laims
ag ainst federal officers under Bivens v. Six Unknown Named Agents o f Federal Bureau of

Narcotics
, 403 U.S. 388 (1971). Hui
, 559 U.S. a t 807. The A ct a lso doe s not provide immunity f

rom a suit “br o u g ht f

o r a violation of a statute o f the Unite d S t ates u nder w hich such action ag ainst anS A L E H V

. B U S H

14

i n d i v i d u a l i s o t h e r w i s e a u t h o r i z e d

. ” 2 8 U

. S

. C

. § 2679(b)(2)(B ). Neither ex c e ption applies here.

But Plaintiff arg ues that Defendants’ actions were n o t taken within the scope of their employ ment and that, therefore, t h ey are not e n titled to immunity under the W e stfall Act in the first place. Plaintiff’s arg u ment embraces
two distinct theories. The first theo r y i s that Defendants in this case acted outside the scope o f their employ ment because
t h e y (1) started planning the a ttack on I r aq before they e v e r took office, (2) a ttacked I r aq out of personal motives, a nd (3) were not emplo y e d t o instig ate an unlawful war. The second theory is that the scope-of-employ ment inquiry under the W estfall Act must be c onducted with an ey e toward the United States’ treaty oblig a tions. That is, the statut e s hould
not be construed to allow an act to be deemed “official” when the United States has entered into treaties cond e m n i n g that

same act. W e will address those two theories in turn, and we will then a d d r e ss Plaintiff’s challeng e to the district court’s denial of her request for an evidentiar y h e a ring concerning the scope certification.

1. The Scope-of-Employment Test

“The Attorney General’s decision reg arding scope o f employ ment certification [ under the W e s tfall Act] is conclusive unless challeng ed. A ccording ly
, the party seeking review b e ars the burde n o f p resenting evidence a nd disproving t h e A t t orney General’s decision to g rant or deny
scope of employ

ment certification by a p reponderance of the evidence.” Green v. Hall
, 8 F .3d 695, 698 (9th Cir. 1 993) (per curiam) (citation and footnote omitte d )

. “To rebut the [ scope] c ertification

. . . , a plaintiff must ‘alleg e sufficient facts that, taken as true, would establish that the defendant’sS A L E H V

. B U S H 15

actions ex c eeded the scope o f his employ ment.’” W

uterich

v. Murtha
, 562 F .3d 375, 3 81 (D.C. Cir. 2009) (brackets omitted) (quoting Stokes v. Cross
, 327 F .3d 1210, 1215 (D.C. Cir. 2003)). “[ W ] h ere a plaintiff fa i l s t o alleg e 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 withi n “ t h e scope of his office o r employ ment” for purposes of the W estfall Act, we apply “the princip l es of respondeat superior of the state in which the alleg ed tort occurred.” Pelletier
, 968 F .2d at 876. W e ag r ee with the parties that t h e r e spondeat superior law of the District of Columbia applies in this case.

District of Columbia c ourts ro u tinely “look[ ] to the Restatement (Second) o f Ag ency ” in determining whether an employ e e’s actions fall within the sc o pe of employ ment. Rasul v

. Myers
, 5 12 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 cur i a m ). “ The Restatement provides [ that] : ‘(1) Conduct of a servant is within the scope of employ ment if, but only if: (a) it is of the k ind he is employ ed to perform; (b) it occurs substanti ally w ithin the authoriz ed time a nd
space limits; (c) it is actuated, at least in part, by a purpose to

serve the master[ ;] a

nd (d) if force is intentionally used by the
servant ag a inst another, the use of force is not une x p e c t a b le by the master. (2) Conduct o f a servant is not within the
scope of employ

m e n t i f it is different in kind from that authoriz ed, far bey ond the authoriz ed time or space limits, o r too little actuated by a purpose to serve the master.’” Council

on Am. Islamic Relations v

. B allenger
, 444 F .3d 659, 663 (D.C. Cir. 2006) (per curiam) (quoting Restatement (Second)S A L E H V

. B U S H

16

of Ag e ncy § 228 (1958)). “District of Columbia law liberally
construes th e 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 omit t ed) (quoting Stokes
, 327 F .3d a t 1 216). “ T he test for scope o f employ ment is an objective one, b ased on all the f ac t s a n d

c i rcumstances.” B a llenger
, 444 F .3d at 663 (bracket s omitte d ) (q uoting W

einberg v. Johnson
, 518 A.2d 985, 991 (D.C. Cir. 1986)).

Plaintiff claim s that Defendants (particularly W olfowitz and Rum s f

eld) were n ot acting w ithin the scope of their employ ment in carry

ing out the I r aq W ar because they started planning the war before taking office. There are at least two problems with this arg ument. F irst, the alleg ed tortious acts of ag g ression—the invasion of I raq—took place a fter Defendants occupied public office, and what took p lace in the late 1990s w as not planning
, but only advocacy

. D uring most of that time, neither W olfowitz nor Rumsfe l d c o uld have known that he would soon be in a position to help implement his policy preferences. Second, pre-employ ment statements of intent or belief do not take the later acts of public officials outside the scope o f their employ ment. Un d er Plaintiff’s theory
, every time a politician ho n o r s a campaig n promise, she could b e considered to be a cting outside the scope o f her employ ment. Or, if a p a s sionate a dvocate f or voting rig hts

were appointed to head the C i v i l R ig hts Division of the Department o f J ustice, his or her bring ing a lawsuit to e nforce voting rig hts would be viewed as outside the scope of his or her employ

ment.

Plaintiff makes a similar arg ume n t with r espect to Defendants’ motives, which bear on the third prong o f the Restatement te s t

— whether a n employ ee’s actions wereS A L E H V

. B U S H 17

“actuated, at least in part, by a purpose to serve the master.” Plaintiff as s e rt s that she has “alleg ed that Defendants were solely motivated by p e r s o n al, selfish purposes,” but that

as s e rtion is not borne out by the factual alleg ations in the second amended complaint. P laintiff conflates a p olicy preference or w orldview—which is “personal” in the sense that it may b e d eeply felt or tied to one’s sense of morality o r identity —that motivates one to advocate for certain p ositions, wi t h a desire to serve one’s individual interests. A federal official would act out of “personal” motives and not b e “actuated

. . . by a purpose t o s e r v e the master” if, for instance, he used the leverag e o f his office to b enefit a spouse’s b usiness, pay ing no heed to the resulting damag e to the public welfare. B ut that is n ot w hat Plaintiff has a lleg ed. Rather, she has alleg ed that Defen d a n t s were committed to certain foreig n policy objectives in which they believed. Even if those alleg ed objectives or beliefs were misg uided o r in contravention of international n orms, the motives were not “personal” in the scope-of-employ ment sense; Defendants’ conduct was “actuated, at least in p art, by a purpose to serve the master,” the United States. Ballenger , 444 F .3d at 663.

F inally
, Plaintiff arg ue s t h at Defendants “were not employ e d to ex ecute a pre-ex isting war.” B ut D efendants, a s members of the ex ecutive b ranch, were c harg ed broadly with
g uiding the U nited St a t e s ’ foreig n policy and with ensuring nationa l security

. Dep’t of Navy v. Egan
, 484 U.S. 518, 529–30 ( 1988). And Cong r e ss authoriz ed Defendant B ush

“ t o u s e the Armed F orces of the United States as he determine[ d] to be necessa r y and appropriate in order to

. . . defend the national security o f the United States ag ainst the continuing threat posed by I raq.” Authoriz ation for Use o f M i l i t ary F orce § 3(a). The actions that Defendants took in connection with the I raq W ar w e r e part of their officialS A L E H V

. B U S H

18

duties, even if some Defendants had hoped to be able to take those actions y ears before taking office.

I n summary , r eading the W e stfall Act in a straig htforward

manner and apply ing District of Columbia resp o n de at superior law to the fac t s alleg ed in the operative complaint,

we hold that Defendants’ alleg e d actions fell within the scope of their employ

ment.

2. C o n struing the W

estfall Act W

ith an E ye Towa r d Treaty Obligations

Plaintiff nex t arg ues that the W e s tfall Act should not be interpreted so as to reg a

rd as “official” an act condemned b y treaty

. P laintiff cites as support for this proposition the United King dom ca s e of Regina v. Bartle & the Commissioner of

Police for the Metropolis & O thers 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 o f L ords ruled that f ormer Chilean leader Aug usto Pinochet w as n o t entitled to official immunity for the role that he play ed in ordering a cts o f
torture and other violations o f international law. Many of the L aw L o rds r eas o n e d that Pinochet’s acts could not be considered official because the Convention Ag ainst Torture 7 forb a d e such acts, and Chile was a party to that treaty

. 38 I

. L .M. at 595 (opinion of L o rd B rowne-W ilkinson); id. at 626–27 (op i n i o n of L o rd Hope); id. at 638–39 (opinion o f L ord Hutton) ; i d

. a t 642–43 (opinion of L ord Saville). The United States h a s sig ned several treaties and other

7 Un ited Natio n s Co n v en tio n A g ain st T ortu re an d Oth er Fo r m s o f Cru el, In h

u m an o r Deg rad in g T r e a t m en t o r P u n ish m en t, Dec. 1 0
, 1 9 8 4
, 1 4 6 5 U.N.T .S. 8 5

.S A L E H V

. B U S H 19

i nternational ag reements condemning ag g ressive war, 8 a n d Plaintiff arg ues that interpreting the W estfall Act to allow for immunity in this case would conflict with those ag reements.

This arg ument suffers from at least two fatal flaws. F irst, the equivalent of the “scope of employ ment” test in the Pinochet case wa s a c r e a ture o f international law, not a test set out by a domestic statu t e. T he L aw L ords were tasked with d etermining whether Pinochet’s actions could be considered “official” as a matte r of international law. The

e f fect of a treaty on that international-law analy sis h as littl e bearing on that same treaty ’s effect on the s c o p e- ofemploy ment analy sis under domestic law.

Second, althoug h we have sug g ested t h at ambig uous statutes should be interpreted to avoid conflicts e v en with non-self-ex ecuting treaties, 9 Kim Ho M a v. Ashcroft
, 2 57 F .3d

8 P l ain tif f cites th e f

o l lo w i n g treaties an d ag reem en ts: th e Un ited N a t i o n s Ch arter, J u n e 2 6
, 1 9 4 5
, 5 9 S tat. 1 0 3 1
, T .S. No

. 99 3 ; th e A g reem en t f

o r th e P ro secu tio n an d P u n ish m en t o f th e Maj o r War Crim in als of th e Eu ro p ean A x is an d C h arter o f t h e In t ern atio n al Military T rib u n al, A u g

. 8
, 1 9 45
, 5 9 Stat. 1 5 4 4
, 8 2 U.N.T .S. 2 7 9 [L o n d o n Ch arter]; th e Ch arter o f th e In t ern atio n al Military T rib u n al f o r th e F ar East, J an

. 1 9
, 1 9 4 6
, T .I.A .S. No

. 1 5 8 9 ; an d th e Kello g g

- B rian d P eace P a c t , Au g

. 2 7
, 1 9 9 8 , 4 6 Stat. 2 3 43 , 9 4 L .N.T .S. 5 7

.

9 T h e p ro p o sitio n th at statu t es sh o u ld b e co n stru ed to av oid co n f licts

w ith n o n

- self

- ex ecu tin g treaties h as b een th e su b j ect o f so m e d eb ate b y b o th co u rts an d co m

m en tato rs. S

ee Fu n d f o r An ima ls, In c. v. Kemp th o rn e , 4 7 2 F.3 d 8 7 2, 8 79 (D.C. Cir. 2 0 0 6 ) (Kav an au g h
, J
., co n cu rrin g ) (o p in in g th at “ th e can o n ag ain st co n stru in g an am b ig u o u s sta t u te to ab ro g ate a treaty

. . . s h o u ld n o t ap p ly in cases in v o lv in g n o n

- self

- ex ecu tin g t reaties”); s ee a lso Reb ecca Cro oto f
, N o te, Ju d icio u s In

flu en ce: No n-S

e l f

Execu tin g Trea ties a n d th e C h a rmin g Betsy Ca n o n , 1 2 0 Yale L .J . 1 7 8 4
, 1 7 9 0

– 9 1 (2 0 1 1 ) (arg u i n g th at am b ig u o u s statu tes sh o u ld b e read to av oid

co n f licts w ith n o n

- self

- ex ecu tin g treaties). B y co n trast, th ere is n o d ou b tS A L E H V

. B U S H

20

1095, 1 114 ( 9 th Cir. 2001), the W estf a l l A c t is not, in any relevant way , ambig u o us. W ith the W estfall A ct—which was enacted after th e p a ssag e of each o f the treaties a nd
ag reements to which Plaintiff cites—Cong ress clearly intended to g rant federal officers immunity to the same ex tent that the United States would h av e been liable for those employ e es’ tortious acts u nder the F TCA (subject to

ex c e ptions that are n ot r elevant to today ’s analy sis). Pelletier
, 9 68 F .2d at 876. W h e n t he W estfall 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. 1 982) (per curiam) (holding that U nited States Marshals

were a cting in the scope of their employ ment when they alleg edly beat an unarmed, shackled prisoner a nd left him to die in a holding cell).

I n short, the treaties and charters cited by Plaintiff do not alter our conclusion that the Westfall A ct, by its plain terms, immuniz es Defendants from suit.

3. Denial of an Evidentiary Hearing

Plaintiff nex t arg u es that she should have been aff o r d ed

an o pportunity to challeng e the scope certi f ication at an

e v identiary hearing

. B ut because the alleg ations in the operative c omplaint, taken as true, do not es t a b l ish that Defendants acted outside the scope of their employ ment, an

th at w h en a s elf-execu t i n g t

reaty an d a statu te “ relate to th e s am e s u b j ect, t h e c o u r ts w ill alw ay s en deav o r to co n stru e th em so as to g iv e ef f ec t t o b o th
, if th at can b e d o n e w ith o u t v io latin g th e lan g u ag e o f eith er.” W h itn ey v. Ro b ertso n , 1 2 4 U.S. 1 9 0 , 1 94 (1 8 8 8 ).S A L E H V

. B U S H 21

evidentiary hearing would be a futile ex e r c ise. 1 0 See McLachlan
, 261 F .3d a t 910–11 ( fi n d i n g no a buse o f discretion in district court’s denial of hea ring to challeng e scope certification “because[ ,] even viewing the evidence in the lig ht most favorable to [t h e plaintiff] and accepting his

v e r s ion of events, d ismissal was appropriate”); see also W uterich
, 562 F .3d a t 381 (holding that a plain t i f f “may
, if
necessary , attain ‘limited discovery ’ to r e s o lve a ny f actual disputes over” the scope-of-employ ment issue, but only if he

or she “alleg [ es] sufficient facts that, taken as true, w o uld establish that the defendan t ’ s actions ex ceeded the scope o f [ his or her] employ

ment” (brackets omitted) (quoting Stokes
, 327 F

. 3d a t 1214–15)). According ly
, the district court did not abuse its d iscretion in d eny ing Plaintiff an evidentiary hearing to challeng e the scope certification. 1 1

B

. Jus Cogens Violations and Domestic Official Immunity

F inally
, Plaintiff arg u es that Defendants cannot be immune under the W estfall Act because she alleg es violations of a jus cogens norm o f internationa l law. “[ A] jus cogens norm, also known as a ‘ peremptory n orm’ of inter n ational law, ‘is a norm accepted and recog niz ed by the international community o f states as a who l e a s a n orm from which no derog ation is permitted and which can b e modified only by a subsequent norm of g eneral international law having the same character.’” S

iderman de B lake v. Argentina
, 9 65 F .2d 699,

10 Plain tif f d id n o t seek leav e to am en d th e co m p lain t f o r a th ird tim e.

11 Plain tif f also arg u es t

h at sh e w as en titled to a j u ry d eterm in atio n of th e co rrectn ess o f th e sco p e c e r tif icatio n

. B u t a j u d g e, n o t a j u ry , is th e

“ ap p ro p riate trier o f an y f

acts essen tial to certif

icatio n .” Osb o rn , 5 4 9 U .S. at 2 5 2

.S A L E H V

. B U S H

22

714 (9th Cir. 1992) ( quoting Vienna Convention o n the L aw of Treaties art. 53, May 23, 1969, 1 1 55 U.N.T.S. 332). “W h e reas customary international law d erives solely from the

c o nsent of states, the fundamental and universal n o r m s constituting jus cogens transc e n d s uch consent.” I d. at 715. “B ecause jus cogens norms do n ot depend sol e ly on the
consent of states for thei r b i n ding force, they enjoy the hig hes t status within international law.” Id. (internal quotation marks omitted). “I nt ernational law d oes not recog niz e an act that violates jus cogens as a sovereig n act.” Id. at 718.

Plaintiff contends that Cong ress simply cannot immuniz e a federal official from liability for a jus cogens violation. I n effect, Plaintiff arg ues that (1) there is a jus cogens norm prohibiting the provision of immunity to officials alleg ed to have committed jus c ogens violations 1 2 and, (2) insofar as the W e stfall A ct violates that norm, it is invalid. The arg ument is premised on the idea that “[ i] nterna t i o n a l law does not recog niz e an act that violates jus cogens as a sovereig n act,”

so that a n official who is alleg ed to have eng ag ed in such an
act cannot c loak himself in the immu nity of the sovereig n. Siderman de Blake , 965 F

. 2d at 718.

W e assume, without deciding
, that the prohibition ag ainst
ag g r ession is a

jus c o gens norm. 1 3 B u t even assuming that the

12 Or, altern ativ ely
, P l ain tif f c o nt e n d s t

h at th ere is a p ro h ib itio n on d ef in i n g an o f

f icial’ s sco p e o f em

plo y m en t u n d er d o m estic law to in clu d e actio n s th at v i o late ju s co g en s n o rm s.

13 See, e.g

. , Ev an J

. Crid d l e & Ev an Fo x

- Decen t, A Fid u cia r y Th eo r y

o f Ju s Co g en s , 34 Yale J

. In t’ l L

. 3 3 1
, 3 3 3 (2 00 9 ) (d escrib in g th e p ro h ib itio n

o n ag g ressio n

as a “ reco g n ized p erem

p to ry n o rm []”).S A L E H V

. B U S H 23

prohibition a g ainst a ggression is a jus cogens norm, Plaintiff’s arg ument that Cong ress cannot provide immunity
to federal officers in courts of the United States for violations of that norm is in serious tension with our casela w

. I n Sid e r m a n de Blake
, we held that Cong ress could g rant a foreig n g overnment immunity from suit f or alleg ed violations of the jus cogens norm ag ainst torture. I d. at 718–19. After
recog niz ing that immunity mig ht not be available as a matter of customary inte rnational law, we n oted that we were dealing “not only with customary international law, but with

an affirmative Act of Cong ress ” —in that case, the F oreig n Sovereig n I mmunities Act. Id. at 718.

Siderman de Blake dealt with foreig n soverei gn immunity
, whereas this c ase concerns the of f i c i a l immunity of domestic of

f i ce r s. B ut, if any

thing
, that difference cuts ag ainst Plaintiff. The immunity of foreig n officials in our courts flows f

rom d ifferent considerations than does the i m m unity of domestic officials. Sanchez-Espino z a v

. R e a g a n , 770 F .2d 202, 207 n.5 (D.C. Cir. 1985); ac c o r d U n iversal Consol. Cos. v. Bank o

f China
, 35 F .3d 2 4 3
, 2 45 (6th Cir. 1994) (“ [ D] omestic sovereig n immunity and foreig n sovereig n immunity are two separate concepts, the first based in constitutional law and the second in c u s tomary international law.”). Given those different orig ins, it should be easier fo r t h e v iolation of a jus cogens norm to o verride foreig n sovereig n immunity than domestic official immunity

. Therefore, our holding in S iderman de Blake

—that Cong ress

can provide i m m u n i ty to a foreig n g overnment for its jus
cogens violations, even when such immunity is inconsistent with principles of international law—compels the conclusionS A L E H V

. B U S H

24

that Cong ress also can provide immunity for federal officers for jus cogens violations. 1 4

CONCL USI ON

Defendants a r e entitled to immunity under the W estfall Act. According ly
, the U nited States was properly substituted

as the so l e d e f

e ndant. B ecause Plaintiff did not ex haust her administrative remedies a g ainst the U nited States, the district
court properly dismissed the cas e f o r l ack of subject matter jurisdiction.

AF F IRMED.

14 S id erma n de Bla ke also f

o rec l o s e s th e altern ativ e f orm u latio n of P lain tif f ’ s arg u m en t—th at an o f f icial’ s sco pe o f em

p lo y m en t u n der d o m estic law can n o t in clu d e ac t i o ns t h at v i o late ju s co g en s n o rm s. W e h eld i n S id

erma n d e Bla ke th at actio n s v io latin g ju s c o g en s n orm s, alth o u g h n o t reco g n ized as so v ereig n acts u n d er in tern atio n al law , co u ld

co n stitu t e s o v ereig n acts f o r p u rp o ses o f th e Fo reig n S o v ereig n I m m u n ities A ct. 9 6 5 F.2 d at 71 8

– 1 9

. S im ilarly
, Def en d an ts’ all e g e d

v io latio n s o f a ju s co g en s n o rm can b e co n sid ered to b e w i th in th e sco p e

o f th eir em p lo y m en t as a m atter o f

d o m estic law

.