Sundus Saleh v. George Bush ( 2017 )


Menu:
  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SUNDUS SHAKER SALEH, on                    No. 15-15098
    behalf of herself and those
    similarly situated,                         D.C. No.
    Plaintiff-Appellant,   3:13-cv-01124-JST
    v.
    OPINION
    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.
    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-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
    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,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). 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.10 See
    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 customary international law derives solely from 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 violations12 and, (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
    immunity of 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.