FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUNDUS SHAKER SALEH, on

behalf of herself and those

similarly situated,

Plaintiff-Appellant,

v.

GEORGE W. BUSH; RICHARD B.

CHENEY; DONALD RUMSFELD;

CONDOLEEZZA RICE; COLIN

POWELL; PAUL WOLFOWITZ;

DOES 1–10, inclusive; and the

UNITED STATES OF AMERICA,

Defendants-Appellees.

No. 15-15098

D.C. No.

3:13-cv-01124-JST

OPINION

Appeal from the United States District Court

for the Northern District of California

Jon S. Tigar, District Judge, Presiding

Argued and Submitted December 12, 2016

San Francisco, California

Filed February 10, 2017
2 SALEH V. BUSH

Before: Susan P. Graber and Andrew D. Hurwitz, Circuit

Judges, and Richard F. Boulware,* District Judge.

Opinion by Judge Graber

SUMMARY**

Westfall Act / Immunity

The panel affirmed the district court’s dismissal, due to

plaintiff’s failure to exhaust her administrative remedies, of

her action after the district court, pursuant to the Westfall

Act, substituted former officials of the President George W.

Bush administration for the United States as the sole

defendant.

Plaintiff alleged that former officials of the President

George W. Bush administration engaged in the war against

Iraq in violation of the Alien Tort Statute. The district court

held that plaintiff had not exhausted her administrative

remedies as required by the Federal Tort Claims Act.

The panel held that the individual defendants were

entitled to official immunity under the Westfall Act, which

accords federal employees immunity from common-law tort

claims for acts undertaken in the course of their official

* The Honorable Richard F. Boulware, United States District Judge

for the District of Nevada, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SALEH V. BUSH 3

duties. Applying the plain language of the Westfall Act and

District of Columbia’s respondeat superior law to the facts

alleged in the operative complaint, the panel held that the

individual defendants’ alleged actions fell within the scope of

their employment. The panel further held that the treaties and

charters cited by plaintiff did not alter its conclusion that the

Westfall Act, by its plain terms, immunized defendants from

suit. Finally, the panel held that the district court did not

abuse its discretion in denying plaintiff an evidentiaryhearing

to challenge the Attorney General’s scope certification

(wherein the AttorneyGeneral determined that the employees

were acting within the scope of their employment and

transformed the action into one against the United States).

The panel rejected plaintiff’s argument that defendants

could not be immune under the Westfall Act because plaintiff

alleged violations of a jus cogens norm of international law. 

A jus cogens norm is recognized by the international

community as a norm from which no derogation is permitted

and which can be modified only by a subsequent norm of

general international law. The panel held that Congress can

also provide immunity for federal officers for jus cogens

violations pursuant to the reasoning in Siderman de Blake v.

Argentina, 965 F.2d 699 (9th Cir. 1992) (holding 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).
4 SALEH V. BUSH

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.

OPINION

GRABER, Circuit Judge:

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, Defendants2had 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 thenTreasury 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 attorneyfor

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,8and

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,9Kim 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. SeeFund 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 alsoRebecca Crootof, Note, Judicious Influence: Non-SelfExecuting 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.10See

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 customaryinternational law derives solelyfrom 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 violations12and, (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

immunityof 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
24 SALEH V. BUSH

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.

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.