Case3:13-cv-01124-JST Document53 Filed12/19/14 Page1 of 7
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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 DENYING PLAINTIFF'S
`MOTION FOR AN EVIDENTIARY
`HEARING AND GRANTING
`DEFENDANTS' MOTION TO DISMISS
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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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`Re: ECF Nos. 38, 43
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`Before the Court are Plaintiff Sundus Shaker Saleh’s Osborn Motion for an Evidentiary
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`Hearing in Support of her Second Amended Complaint, ECF No. 38, and Defendants’ Motion to
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`Dismiss, ECF No. 43. For the reasons set forth below, the motion for an evidentiary hearing is
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`DENIED and the motion to dismiss is GRANTED.
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`I.
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`BACKGROUND
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`Plaintiff Saleh brings this action on her own behalf and on behalf of a putative class of
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`Iraqi civilians against former President George W. Bush, former Vice President Richard Cheney,
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`former Secretary of Defense Donald Rumsfeld, former National Security Advisor Condoleeza
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`Rice, former Secretary of State Colin Powell, and former Deputy Secretary of Defense Paul
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`Wolfowitz (“Defendants”). ECF No. 37. Saleh alleges that Defendants “broke the law in
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`conspiring and committing the Crime of Aggression against the people of Iraq” when they
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`engaged the United States in war with Iraq. Id. ¶ 1. She alleges that Defendants’ actions violated
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`international law, citing sources of international law including the Kellogg-Briand Pact, the United
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`Nations Charter, and the Nuremberg Charter. Id. ¶¶ 139-44, 149-54.
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`On May 19, 2014, the Court granted Defendants’ Motion to Dismiss Saleh’s First
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`Amended Complaint and permitted Saleh to file an amended complaint addressing the deficiencies
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`identified by the Court. ECF No. 35. Saleh filed her Second Amended Complaint on June 8,
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`2014, ECF No. 37, and her motion requesting an evidentiary hearing the following day, ECF No.
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`38. On June 23, 2014, the United States filed its Notice of Substitution of the United States as
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`Sole Defendant pursuant to the Westfall Act, 28 U.S.C. § 2679(b), and its motion to dismiss the
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`operative complaint for lack of subject matter jurisdiction. ECF Nos. 42, 43. The Court will
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`address the motion for an evidentiary hearing and the motion to dismiss in turn.
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`II.
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`PLAINTIFF’S MOTION FOR AN EVIDENTIARY HEARING
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`On behalf of the Attorney General, the Director of the Torts Branch of the United States
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`Department of Justice has certified that each individual Defendant in this case was acting within
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`the scope of his or her federal office or employment at the time of the incidents out of which
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`Saleh’s claims arise. ECF No. 42-1. Plaintiff seeks an evidentiary hearing to challenge the
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`certification of scope of employment or, in the alternative, an Order from the Court that it will
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`assume the truth of the factual allegations in the complaint for the purposes of challenging the
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`certification. ECF No. 38. For the reasons below, the motion is DENIED.
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`A. The Westfall Act
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`The Westfall Act confers immunity on federal employees by making a Federal Tort Claims
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`Act (“FTCA”) action against the Government “the exclusive remedy for torts committed by
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`Government employees in the scope of their employment.” United States v. Smith, 499 U.S. 160,
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`163 (1991); 28 U.S.C. § 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 claim in a United States
`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). The exclusivity of the FTCA remedy is applicable even if it bars a
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`plaintiff’s recovery. See Smith, 499 U.S. at 166 (“Congress recognized that the required
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`substitution of the United States as the defendant in tort suits filed against Government employees
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`would sometimes foreclose a tort plaintiff’s recovery altogether.”).
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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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`Case3:13-cv-01124-JST Document53 Filed12/19/14 Page3 of 7
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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.
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`B. Legal Standard
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`A district court has discretion to hold an evidentiary hearing to permit investigation of the
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`Attorney General’s certification that a government employee was acting within the scope of his or
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`her employment at the relevant time. Kashin v. Kent, 457 F.3d 1033, 1043 (9th Cir. 2006).
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`However, a court “should not do so if the certification, the pleadings, the affidavits, and any
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`supporting documentary evidence do not reveal an issue of material fact.” Id.
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`C. Discussion
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` Plaintiff’s challenge to the Attorney General’s scope of employment certification is based
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`on her allegations that Defendants formed an intent to invade Iraq before they came into office and
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`that their actions were driven entirely by personal motivations, including their ideological and
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`religious convictions, and not by the duties of the offices they held. ECF No. 38 at 3. Defendants
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`contend that Saleh’s request for a hearing must be rejected because she has neither presented any
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`evidence nor alleged any facts sufficient to meet her burden of disproving that Defendants were
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`acting within the scope of their employment during the Iraq War. ECF No. 46 at 3.
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`The Court concludes that an evidentiary hearing would be inappropriate in this case
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`because the certification and pleadings in this case “do not reveal an issue of material fact” as to
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`whether Defendants were acting within the scope of their employment in conjunction with the war
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`in Iraq. Kashin, 457 F.3d at 1043. Under District of Columbia scope of employment law, which
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`is drawn from the Restatement (Second) of Agency:
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`(1) Conduct of a servant is within the scope of employment if, but
`only if:
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`(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
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`Case3:13-cv-01124-JST Document53 Filed12/19/14 Page4 of 7
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`time or space limits, or too little actuated by a purpose to serve the
`master.
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`Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006).1
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`It is clear that, even taking all of Saleh’s factual allegations as true, the scope of
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`employment requirements are satisfied. Defendants were formerly the Commander-in-Chief, the
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`Vice-President, the Secretary of Defense, the National Security Advisor, and the Deputy Secretary
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`of Defense of the United States. With respect to the first and second prongs of the test, engaging
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`in war is without doubt among conduct of the kind the these defendants were employed to perform
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`and, notwithstanding Saleh’s claim that Rumsfeld and Wolfowitz had a preexisting plan to invade
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`Iraq, the planning and execution of the war with Iraq “occur[ed] substantially within the
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`authorized time” of Defendants’ employment. Similarly, because Saleh does not allege that
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`Defendants personally used force and any use of military force they authorized in conjunction with
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`war “is not unexpectable,” the fourth prong is satisfied.
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`The third prong, providing that conduct “is actuated, at least in part, by a purpose to serve
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`the master,” requires only “a partial desire to serve the master.” Council on Am. Islamic
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`Relations, 444 F.3d at 665; see also id. at 664 (“the proper [scope of employment] inquiry focuses
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`on the underlying dispute or controversy, not on the nature of the tort, and is broad enough to
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`embrace any intentional tort arising out of a dispute that was originally undertaken on the
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`employer’s behalf” (internal quotation marks omitted)); Allaithi v. Rumsfeld, 753 F.3d 1327, 1333
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`(D.C. Cir. 2014) (“[District of Columbia] law requires an employee be solely motivated by his
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`own purposes for consequent conduct to fall outside the scope of employment.”); Weinberg v.
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`Johnson, 518 A.2d 985, 989 (D.C. 1986) (“where the employee is in the course of performing job
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`duties, the employee is presumed to be intending, at least in part, to further the employer’s
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`interests”). Saleh alleges that “Defendants were not motivated by genuine national security
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`interests” but rather, “inter alia, by personally-held neo-conservative convictions which called for
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`American military dominance of the Middle East, and by a religious worldview.” ECF No. 37
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`1 The parties agree that District of Columbia law governs the scope of employment determination
`in this case. ECF No. 43 at 7 n.7; ECF No. 47 at 12-13. See also Kashin, 457 F.3d at 1037-39
`(applying District of Columbia law).
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`¶ 109. But these alleged “neo-conservative convictions” relate to the military and political
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`position of Defendants’ employer, the United States, not to any personal gain that Defendants
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`sought from a war with Iraq. Saleh has presented no evidence and alleged no fact that would
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`suggest that Defendants’ actions in planning and prosecuting the war in Iraq were not motivated,
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`at least in part, by a subjective desire to serve the interests of the United States.2
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`III. DEFENDANTS’ MOTION TO DISMISS
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`A. 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 Federal Rule of Civil Procedure 12(b)(1). The plaintiff
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`always bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life
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`Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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`B. 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 this action. ECF No. 43. The Government argues that the
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`United States must be substituted as Defendant, and that the Court lacks subject matter jurisdiction
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`because (1) Saleh failed to exhaust her administrative remedies before filing suit; (2) the United
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`States has not waived its sovereign immunity for suits based upon customary international law; (3)
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`Saleh’s claims are barred by the foreign country exception to the FTCA; and (4) Saleh’s claims are
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`barred by the combatant activities exception to the FTCA. Id. at 3. In any event, the Government
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`argues, the political question doctrine bars Saleh’s claims, and her claims cannot be brought under
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`the Alien Tort Statute. Id. at 4. Finally, the Government contends that even if this Court does
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`have subject matter jurisdiction over the action, venue is improper in this district. Id.
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`2 Saleh acknowledges that the argument that alleged violations of jus cogens norms are always
`outside the scope of employment has been rejected. ECF No. 47 at 16 n.22. She attempts to
`distinguish her “narrower” argument that such violations are outside the scope of government
`employment when the United States has ratified a treaty prohibiting the relevant conduct, but she
`cites no U.S. authority in support of this position. Id.
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`Case3:13-cv-01124-JST Document53 Filed12/19/14 Page6 of 7
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`1. The Westfall Act
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`As explained above, the Westfall Act makes a Federal Tort Claims Act action against the
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`Government “the exclusive remedy for torts committed by Government employees in the scope of
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`their employment.” Smith, 499 U.S. at 163; 28 U.S.C. § 2679(b)(1). “Certification by the
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`Attorney General is prima facie evidence that a federal employee was acting in the scope of her
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`employment at the time of the incident and is conclusive unless challenged.” Billings, 57 F.3d at
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`800. The party seeking review of the certification “bears the burden of presenting evidence and
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`disproving the Attorney General’s certification by a preponderance of the evidence.” Id.
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`Here, the Attorney General has certified that Defendants were acting within the scope of
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`their federal employment when performing the acts at issue. ECF No. 42-1. For the reasons
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`explained above, the Court concludes that Saleh cannot meet her burden of disproving that
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`Defendants were acting within the scope of their employment during the Iraq War.3 Accordingly,
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`this action shall be deemed an action against the United States and the United States shall be
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`substituted as the sole Defendant. See 28 U.S.C. § 2679(d)(1).
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`2. 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 the
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`operative complaint, like the prior complaint considered by the Court in its May 19, 2014 Order, is
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`devoid of any suggestion that Saleh filed an administrative claim with a federal agency prior to
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`filing this suit, the Court is without jurisdiction to adjudicate her claims. See Valadez-Lopez v.
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`Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (“The requirement of an administrative claim is
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`jurisdictional. Because the requirement is jurisdictional, it must be strictly adhered to. This is
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`3 Saleh argues that the Government is estopped from arguing that the crime of aggression is within
`the scope of an official’s employment or from certifying that Defendants’ conduct is within the
`scope of employment because this position is inconsistent with the United States’ statements
`before the Nuremburg Tribunal following the Second World War. ECF No. 47 at 10-12. But she
`cites no case, and this Court is aware of none, that supports her position that the proceedings of an
`international criminal military tribunal can have preclusive or estoppel effect on a subsequent civil
`case in federal court. See ECF No. 49 at 2-4.
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`particularly so since the FTCA waives sovereign immunity. Any such waiver must be strictly
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`construed in favor of the United States.”) (internal citations and quotations omitted); see also
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`McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit
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`in federal court until they have exhausted their administrative remedies.”).
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`IV. CONCLUSION
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`Because the Court concludes that it lacks subject matter jurisdiction over this action, it will
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`not consider the numerous additional arguments presented by the parties. For the reasons above,
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`Plaintiff’s motion for an evidentiary hearing is DENIED and the United States’ motion to dismiss
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`is GRANTED. The action is hereby DISMISSED WITH PREJUDICE.
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`IT IS SO ORDERED.
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`Dated: December 19, 2014
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`______________________________________
`JON S. TIGAR
`United States District Judge
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