Case3:13-cv-01124-JST Document35 Filed05/19/14 Page1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 13-cv-01124-JST
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`ORDER GRANTING MOTION TO
`DISMISS
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`Re: ECF No. 29
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`SUNDUS SHAKER SALEH,
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`Plaintiff,
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`v.
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`GEORGE W. BUSH, et al.,
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`Defendants.
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`In this putative class action for claims arising out of the United States’ involvement in the
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`Iraq War, the United States moves under Federal Rule of Civil Procedure 12(b)(1) to dismiss the
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`operative complaint. For the reasons set forth below, the Court will grant the motion with leave to
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`amend.
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`I.
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`BACKGROUND
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`Plaintiff Sundus Shaker Saleh brings this action on her own behalf and on behalf of a
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`putative class of Iraqi civilians against former President George W. Bush, former Vice President
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`Richard Cheney, former Secretary of Defense Donald Rumsfeld, former National Security
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`Advisor Condoleezza Rice, and former Deputy Secretary of Defense Paul Wolfowitz
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`(“Defendants”). First Am. Compl. (“FAC”), ECF No. 25. Saleh alleges that Defendants
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`committed the “crime of aggression” when they engaged the United States in war with Iraq. FAC
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`¶¶ 2, 8–14, 129–48. Saleh alleges that Defendants’ actions violated “accepted customary norms of
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`international law,” as well as other established sources of international law, including the Kellogg-
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`Briand Pact, the Nuremberg Charter, and the Charter of the United Nations. Id. ¶¶ 103, 133.
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`Case3:13-cv-01124-JST Document35 Filed05/19/14 Page2 of 4
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`II.
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`LEGAL STANDARD
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`“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
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`dismiss the action.” Fed. R. Civ. P. 12(h)(3). A defendant may raise the defense of lack of subject
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`matter jurisdiction by motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
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`The plaintiff always bears the burden of establishing subject matter jurisdiction. Kokkonen v.
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`Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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`“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v.
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`Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the
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`allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.”
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`Id. “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by
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`themselves, would otherwise invoke federal jurisdiction.” Id.
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`In considering a facial attack, the court “determine[s] whether the complaint alleges
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`‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
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`Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (quoting Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009)). “If the defendant instead makes a factual attack on subject matter
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`jurisdiction, the defendant may introduce testimony, affidavits, or other evidence” and “[u]nder
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`these circumstances, no presumptive truthfulness attaches to plaintiff's allegations.” Id. (citation
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`and internal quotation marks omitted).
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`III. DISCUSSION
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`The United States moves to dismiss the operative complaint on the ground that the Court
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`lacks subject matter jurisdiction over it. The United States contends that the Westfall Act requires
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`the substitution of the United States for the individual Defendants because Saleh’s claims are
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`premised on the acts of government employees that were performed within the scope of their
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`government employment. The United States further argues that, once this substitution occurs, all
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`claims in the complaint must be treated as arising under the Federal Torts Claims Act (“FTCA”).
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`The United States contends that the Court lacks jurisdiction under the FTCA because Saleh has
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`not shown that she exhausted her administrative remedies prior to filing this action.
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`Case3:13-cv-01124-JST Document35 Filed05/19/14 Page3 of 4
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`The Court addresses each of these issues in turn.
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`A.
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`The Westfall Act
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`The Westfall Act confers immunity to federal employees “by making an FTCA action
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`against the Government the exclusive remedy for torts committed by Government employees in
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`the scope of their employment.” United States v. Smith, 499 U.S. 160, 163 (1991); 28 U.S.C. §
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`2679(b)(1). The Act provides that:
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`Upon certification by the Attorney General that 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, any civil action
`or proceeding commenced upon such a claim in a United district
`court shall be deemed an action against the United States under the
`provisions of this title and all references thereto, and the United
`States shall be substituted as the party defendant.
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`28 U.S.C. § 2679(d)(1).
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`“Certification by the Attorney General is prima facie evidence that a federal employee was
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`acting in the scope of her employment at the time of the incident and is conclusive unless
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`challenged.” Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). The party seeking
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`review of the certification “bears the burden of presenting evidence and disproving the Attorney
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`General’s certification by a preponderance of the evidence.” Id. (citation omitted).
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`Here, the Attorney General has certified that each individual Defendant was acting within
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`the scope of his or her federal employment when performing the acts at issue. Saleh presents no
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`evidence to challenge the certification’s conclusion that Defendants were acting within the scope
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`of their employment.1 Instead, Saleh relies on allegations in the complaint, which are not
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`evidence, to argue that Defendants’ conduct was motivated by personal goals and not by the duties
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`of the offices they held.2 See Opp’n at 37-38 (citing FAC ¶¶ 26-33, 92, 34-54, 41, 42, 59, 60, 54,
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`77, 83, 85). Accordingly, because Saleh has failed to challenge the Attorney General’s
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`1 On behalf of the Attorney General, the Director of the Torts Branch of the U.S. Department of
`Justice has certified that each individual Defendant in this case was acting within the scope of his
`or her federal employment with regard to the incidents out of which Plaintiff’s claims arise. See
`Certification of Scope of Employment, ECF No. 19–1.
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` Saleh devotes the lion’s share of her brief to the argument that the complaint cannot be dismissed
`in light of the purported incorporation of the “crime of aggression” into federal common law.
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`Case3:13-cv-01124-JST Document35 Filed05/19/14 Page4 of 4
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`certification, this action shall be deemed an action against the United Sates and the United States
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`shall be substituted as the sole Defendant. See 28 U.S.C. § 2679(d)(1).
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`B.
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`The FTCA’s Administrative Exhaustion Requirement
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`The FTCA provides that “[a]n action shall not be instituted upon a claim against the United
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`States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency
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`and his claim shall have been finally denied by the agency . . . .” 28 U.S.C. § 2675(a). Because
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`the operative complaint is devoid of any suggestion that Saleh filed an administrative claim with a
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`federal agency prior to filing this suit, the Court is without jurisdiction to adjudicate her claims.
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`See Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (“The requirement of an
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`administrative claim is jurisdictional. Because the requirement is jurisdictional, it must be strictly
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`adhered to. This is particularly so since the FTCA waives sovereign immunity. Any such waiver
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`must be strictly construed in favor of the United States.”) (internal citations and quotation marks
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`omitted); see also McNeil v. United States, 508 U.S. 106, 113 (1993) (holding that the “FTCA
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`bars claimants from bringing suit in federal court until they have exhausted their administrative
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`remedies”).
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`IV. CONCLUSION
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`The United States’ motion to dismiss for lack of subject matter jurisdiction is GRANTED.
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`Saleh may file an amended complaint within twenty days of the date this order is filed that
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`addresses the deficiencies identified in this order. A failure to do so will result in the dismissal of
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`this action with prejudice.
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`IT IS SO ORDERED.
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`Dated: May 19, 2014
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`______________________________________
`JON S. TIGAR
`United States District Judge
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