FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`SUNDUS SHAKER SALEH, on
`behalf of herself and those
`similarly situated,
`Plaintiff-Appellant,
`
`No. 15-15098
`
`D.C. No.
`3:13-cv-01124-JST
`
`OPINION
`
`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.
`
`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 evidentiary hearing
`to challenge the Attorney General’s scope certification
`(wherein the Attorney General 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, Defendants2 had 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 then-
`Treasury 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.
`
`

`

`SALEH V. BUSH
`
`8 C
`
`ongress 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-of-
`employment 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 attorney for
`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
`
` 28 U.S.C.
`is otherwise authorized.”
`individual
`§ 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,8 and
`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-of-
`employment analysis under domestic law.
`
`Second, although we have suggested that ambiguous
`statutes should be interpreted to avoid conflicts even with
`non-self-executing treaties,9 Kim 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. See Fund 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 also Rebecca Crootof, Note, Judicious Influence: Non-Self-
`Executing 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). B