Babajide Sobitan v. Lori Glud

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3119
B ABAJIDE SOBITAN,
Plaintiff-Appellant,
v.
L ORI G LUD , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-05366—John W. Darrah, Judge.
A RGUED A PRIL 17, 2008
R EARGUED M AY 14, 2009—D ECIDED D ECEMBER 9, 2009
Before R IPPLE, M ANION and T INDER, Circuit Judges.
R IPPLE, Circuit Judge. Babajide Sobitan was detained at
O’Hare International Airport by a United States Customs
and Border Protection Enforcement officer for illegally
reentering the United States. He subsequently was prose-
cuted for illegal reentry and was convicted.
In 2006, Mr. Sobitan instituted this action against Lori
Glud, the customs officer who had arrested him, and
against John Podliska, the Assistant United States Attorney
who prosecuted his case. In his complaint, Mr. Sobitan
2 No. 07-3119
alleged that both defendants failed to inform him of his
consular rights under Article 36 of the Vienna Convention
on Consular Relations (“Vienna Convention”), Apr. 24,
1963, 21 U.S.T. 77, 596 U.N.T.S. 261. The Government
filed a motion for substitution and dismissal under the
Federal Employees Liability Reform and Tort Compensa-
tion Act (“Westfall Act”),1 28 U.S.C. § 2679. The district
court granted the motion and dismissed the action.
Mr. Sobitan appealed, and we now affirm the judgment
of the district court.
I
BACKGROUND
Mr. Sobitan is a Nigerian citizen. In 2003, he attempted to
enter the United States at O’Hare International Airport,
1
The Federal Employees Liability Reform and Tort Compensa-
tion Act is commonly referred to as the Westfall Act because it
was enacted in response to the Supreme Court’s decision in
Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, the Court
recognized a federal employee’s immunity from suit only
when the employee (1) was acting within the scope of his
employment and (2) was performing a discretionary function.
As explained by the Court later, “Congress reacted quickly to
delete the discretionary function requirement, finding it an
unwarranted judicial imposition, one that had created an
immediate crisis involving the prospect of personal liability and
the threat of protracted personal tort litigation for the entire
Federal workforce.” Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 425-26 (1995) (internal quotation marks and citations
omitted).
No. 07-3119 3
where he was detained and arrested by Ms. Glud for
illegally reentering the United States. He subsequently was
prosecuted by Mr. Podliska. Neither Ms. Glud nor
Mr. Podliska informed Mr. Sobitan of his right to
consular notification provided by Article 36 of the
Vienna Convention.2 Mr. Sobitan was convicted on the
charge.
In 2006, Mr. Sobitan filed a complaint against Ms. Glud
and Mr. Podliska in which he sought compensatory and
punitive damages for their alleged failure to inform him
of his rights under Article 36 during his arrest, as
well as his subsequent detention and prosecution.3 The
2
The defendants dispute these facts; however, because the
matter was decided on a motion to dismiss, the facts as
alleged by the plaintiff are presumed to be true. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (“We construe
the complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts alleged, and drawing
all possible inferences in her favor.”).
3
Specifically, Article 36 of the Vienna Convention provides:
1. With a view to facilitating the exercise of consular
functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with
nationals of the sending State and to have access to
them. Nationals of the sending State shall have the
same freedom with respect to communication with
and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the
receiving State shall, without delay, inform the consular
post of the sending State if, within its consular district,
(continued...)
4 No. 07-3119
Government filed a motion for substitution and dismissal
under the Westfall Act, 28 U.S.C. § 2679(b).
The district court granted the Government’s motion. It
substituted the United States as the defendant and dis-
missed Mr. Sobitan’s claim with prejudice. It held that,
3
(...continued)
a national of that State is arrested or committed to
prison or to custody pending trial or is detained in any
other manner. Any communication addressed to the
consular post by the person arrested, in prison,
custody or detention shall also be forwarded by the
said authorities without delay. The said authorities
shall inform the person concerned without delay of
his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a
national of the sending State who is in prison, custody
or detention, to converse and correspond with him
and to arrange for his legal representation. They shall
also have the right to visit any national of the sending
State who is in prison, custody or detention in their
district in pursuance of a judgment. Nevertheless,
consular officers shall refrain from taking action on
behalf of a national who is in prison, custody or deten-
tion if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall
be exercised in conformity with the laws and regulations
of the receiving State, subject to the proviso, however, that
the said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded
under this Article are intended.
Vienna Convention on Consular Relations art. 36, Apr. 24, 1963,
21 U.S.T. 77, 596 U.N.T.S. 261.
No. 07-3119 5
under the Westfall Act, the Government was the proper
defendant. Specifically, it rejected Mr. Sobitan’s argument
that his Vienna Convention claim arose under a federal
statute and therefore was excepted from the Westfall
Act’s coverage. See 28 U.S.C. § 2679(b)(2). Because the
Westfall Act mandated that the Government be sub-
stituted for the individual defendants, the district court
continued, Mr. Sobitan was required to adhere to the
procedural requirements set forth in the Federal Tort
Claims Act, 28 U.S.C. § 2675(a) (“FTCA”). The district
court found that Mr. Sobitan had failed to exhaust his
administrative remedies before instituting his action as
required by 28 U.S.C. § 2675(a). The court therefore dis-
missed with prejudice Mr. Sobitan’s complaint.
II
DISCUSSION
On appeal, Mr. Sobitan claims that the district court
erred in substituting the Government as a defendant
pursuant to the Westfall Act. Mr. Sobitan acknowledges
that the Act provides for the substitution of the United
States as a party in any action brought “for injury or loss
of property, or personal injury or death arising or
resulting from the negligent or wrongful act or omission
of any employee of the Government while acting within
the scope of his office or employment.” 28 U.S.C.
§ 2679(b)(1). He argues, however, that his action falls
within the exception set forth in § 2679(b)(2) for actions
“brought for a violation of a statute of the United States.”
Id. § 2679(b)(2)(B). According to Mr. Sobitan, the term
6 No. 07-3119
“statute” encompasses “treaty.” Therefore, because his
action seeks relief for violations of his rights under a
treaty, specifically the Vienna Convention, the substitu-
tion provision of the Westfall Act does not apply to his
action. We begin our consideration of Mr. Sobitan’s
argument with the language of the Act. See, e.g., Bass v.
Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322,
1324-25 (7th Cir. 1997) (“As with all issues of statutory
interpretation, the appropriate place to begin our
analysis is with the text itself, which is the most reliable
indicator of congressional intent.” (citations omitted)).
A. The Westfall Act
We recently have observed that “[t]he principles that
must guide our inquiry” into a statute’s meaning “are
well settled but worth repeating.” United States v.
Webber, 536 F.3d 584, 593 (7th Cir. 2008). Specifically,
[i]n analyzing the language of a statute, we give the
words their ordinary meaning unless the context
counsels otherwise. McCarthy v. Bronson, 500 U.S. 136,
139 (1991) (explaining that “statutory language must
always be read in its proper context”). When the
plain wording of the statute is clear, that is the end
of the matter. BedRoc, Ltd. v. United States, 541 U.S.
176, 183 (2004) (noting that the task of statutory inter-
pretation “ends there [if] the text is unambiguous”).
The “plain meaning” of a statute, however, is often
illuminated not only by its language but also by its
structure. Alexander v. Sandoval, 532 U.S. 275, 288
No. 07-3119 7
(2001); Marie O. v. Edgar, 131 F.3d 610, 622 (7th Cir.
1997). “Context, not just literal text, will often lead a
court to Congress’ intent in respect to a particular
statute.” City of Rancho Palos Verdes v. Abrams, 544
U.S. 113, 127 (2005) (Breyer, J., concurring); Dersch
Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 856 (7th Cir.
2002) (noting that a statute must be “construed in
its proper context”).
Webber, 536 F.3d 584, 593-94 (parallel citations omitted).
We, therefore, turn our attention to the statutory text.
Section 2679 of Title 28 provides in relevant part:
(b)(1) The remedy against the United States provided
by sections 1346(b) and 2672 of this title for injury
or loss of property, or personal injury or death
arising or resulting from the negligent or wrongful
act or omission of any employee of the Govern-
ment while acting within the scope of his office or em-
ployment is exclusive of any other civil action or pro-
ceeding 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 em-
ployee’s estate is precluded without regard to
when the act or omission occurred.
(2) Paragraph (1) does not extend or apply to a civil
action against an employee of the Government—
(A) which is brought for a violation of the Consti-
tution of the United States, or
8 No. 07-3119
(B) which is brought for a violation of a statute of
the United States under which such action against
an individual is otherwise authorized.
...
(d)(1) 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 pro-
ceeding 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.
...
(4) Upon certification, any action or proceeding
subject to paragraph (1), (2), or (3) shall proceed in the
same manner as any action against the United States
filed pursuant to section 1346(b) of this title and
shall be subject to the limitations and exceptions
applicable to those actions.
28 U.S.C. § 2679.
Section 2679(b)(1) shelters federal employees from
liability “for injury or loss of property, or personal injury
or death arising or resulting from the negligent or wrong-
ful act or omission” of the employee “while acting within
the scope of his office or employment”; it accomplishes this
by transforming the action against the employee into one
against the federal Government. There are only two
discrete categories of cases to which this protection does
No. 07-3119 9
not apply: (1) a claim “brought for a violation of the
Constitution of the United States,” and (2) a claim “brought
for a violation of a statute of the United States under
which such action against an individual is otherwise
authorized.” 28 U.S.C. § 2679(b)(2).
When a claim of wrongful conduct is brought against a
government official in his individual capacity, and the
claim does not fall within the specified exceptions
to immunity in § 2679(b)(2), the Attorney General’s certifi-
cation that the defendant was acting within the scope of
his employment requires substitution of the United States
as a defendant. The suit then proceeds as though it had
been filed against the United States under the FTCA. As
such, it is subject to the “limitations and exceptions”
applicable to cases brought pursuant to the FTCA. 28
U.S.C. § 2679(d)(4).
B. Substitution
In this case, the parties agree on most aspects of the
Westfall Act’s application to the facts as alleged in
Mr. Sobitan’s complaint. The parties agree that
Mr. Sobitan’s action is “for injury or loss of property, or
personal injury or death arising or resulting from the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment” and, therefore, falls within the
general coverage of the Westfall Act. 28 U.S.C. § 2679(b)(1).
Furthermore, they agree that, absent an exception to
coverage, the United States properly was substituted as a
party. Finally, they agree that the action cannot proceed
10 No. 07-3119
against the United States because the United States
has not waived its sovereign immunity generally with
respect to claims brought pursuant to international treaties.
The only issue on which the parties disagree, and,
therefore, the focus of our efforts, is whether the present
action “is brought for a violation of a statute of the
United States” and, as a result, is exempted from the
Westfall Act’s substitution provision. Mr. Sobitan claims
that his action for damages for violation of consular
rights afforded him by Article 36 of the Vienna Conven-
tion is an action “brought for a violation of a statute of
the United States under which such action against an
individual is otherwise authorized.” In short, Mr. Sobitan
believes that the Vienna Convention should be con-
sidered a statute for purposes of § 2679(b)(2)(B).
1.
Mr. Sobitan first claims that the “plain and ordinary”
meaning of the term statute includes “self-executing
treaties ratified by the United States, including Article 36
of the Vienna Convention.” Appellant’s Br. 9. We cannot
accept this argument.
Section 2679(b)(2)(B) creates an exception for “statute[s]
of the United States.” The plain and ordinary meaning of
the term “statute of the United States” is a bill enacted in
accordance with the procedures set forth in Article I of
the Constitution, that is, passed by both houses of Con-
gress and signed by the President. Judicial use of the
term “statute” bears out this meaning. See, e.g., United
No. 07-3119 11
States v. Vuitch, 402 U.S. 62, 64-65 (1971) (observing
that “[a] piece of legislation” applicable only in the
District of Columbia “is nevertheless a ‘statute’ in the
sense that it was duly enacted into law by both Houses
of Congress and was signed by the President”); INS v.
Chadha, 462 U.S. 919, 954 (1983) (“[R]epeal of statutes, no
less than enactment, must conform with Art. I.”); Hamdan
v. Rumsfeld, 548 U.S. 557, 668 (2006) (Scalia, J., dissenting)
(noting that “the language of the statute that was actually
passed by both Houses of Congress and signed by the
President is our only authoritative and only reliable
guidepost” as to statutory meaning); In re Sanders, 551
F.3d 397, 402 (6th Cir. 2008) (observing that “[t]he most
conspicuous place to look for the purpose of a law of
course is the text of the statute that both houses of
Congress passed and that the President signed into law”
(emphasis added)); United States v. Fields, 500 F.3d 1327,
1334 (11th Cir. 2007) (“We should never forget that the
law is what the statute itself says after it is approved by
both houses of the legislature and signed by the Presi-
dent.”); Atlantic City Elec. Co. v. F.E.R.C., 295 F.3d 1, 11
(D.C. Cir. 2002) (observing that a regulation cannot “be
the basis for denying the petitioners their rights pro-
vided by a statute enacted by both houses of Congress
and signed into law by the president”). Indeed, on more
than one occasion, the Court has observed that there is
“abundant support for the conclusion that the power to
enact statutes may only ‘be exercised in accord with a
single, finely wrought and exhaustively considered,
procedure,’ ” specifically, passage by both houses of
Congress and signature by the President. Clinton v. City
12 No. 07-3119
of New York, 524 U.S. 417, 440 (1998) (quoting Chadha,
462 U.S. at 951; emphasis added).
In contrast to the multiple examples of common usage
previously set forth, Mr. Sobitan has not come forward
with any example, either in statutory or common law, that
has defined or interpreted the term “statute” to include
treaties. Instead, Mr. Sobitan points to American Fed-
eration of Labor v. Watson, 327 U.S. 582, 592 (1946), in
which the Court held that a state constitutional provision
constitutes a “statute” for purposes of § 266 of the
Judicial Code.4 Similarly, Mr. Sobitan relies on Stevens v.
4
In American Federation of Labor v. Watson, 327 U.S. 582 (1946),
the Court addressed whether the case before it, which
involved an injunction against the enforcement of a state
constitutional provision, was a proper subject for a three-judge
panel under § 266 of the Judicial Code. The Court explained:
The statute provides that only a three-judge court may
issue an interlocutory injunction suspending or re-
straining “the enforcement, operation, or execution of any
statute of a State by restraining the action of any officer
of such State in the enforcement or execution of such
statute.” § 266 of the Judicial Code, 28 U.S.C. § 380. The
question is whether within the meaning of that section
“statute” is restricted to legislative enactments or
includes provisions of state constitutions as well. It is
sometimes used to embrace all enactments, however
adopted, to which a State gives the force of law. See
Stevens v. Griffith, 111 U.S. 48, 50 [(1884)]. In speaking of
§ 266 we recently said, “To bring this procedural device
into play—to dislocate the normal operations of the system
(continued...)
No. 07-3119 13
Griffith, 111 U.S. 48 (1884), in which the Court commented
on its authority to review a state’s enforcement of a law
of the confederacy. The Court stated:
If enforced as a law there it would be considered as a
statute, not of the confederacy, but of the state, and
treated accordingly. Any enactment, to which a state
4
(...continued)
of lower federal courts and thereafter to come directly to
this Court—requires a suit which seeks to interpose the
Constitution against enforcement of a state policy, whether
such policy is defined in a state constitution or in an
ordinary statute or through the delegated legislation, of an
‘administrative board or commission.’ The crux of the
business is procedural protection against an improvident
state-wide doom by a federal court of a state’s legislative
policy. . . .” It would, as the court below stated, be some-
what incongruous to hold that a single judge, while pro-
hibited from enjoining action under an act of the state
legislature, would be free to act if the state constitution
alone were involved. The policy underlying § 266 admits
no distinction between state action to enforce a constitu-
tional provision and state action to enforce an act of the
legislature. There is no suggestion in the history of § 266
that Congress was willing to give the federal courts a
freer hand when state constitutional provisions were
involved. In our view the word “statute” in § 266 is a
compendious summary of various enactments, by what-
ever method they may be adopted, to which a State
gives her sanction and is at least sufficiently inclusive to
embrace constitutional provisions.
Id. at 591-93 (parallel citations omitted; emphasis added).
14 No. 07-3119
gives the force of law, whether it has gone through
the usual stages of legislative proceedings or been
adopted in other modes of expressing the will of the
state, is a statute of the state within the meaning of
the acts of congress touching our appellate jurisdiction.
Id. at 50. In short, the Court held that, because the state
enforced a law of the confederacy as its own, the Court
had jurisdiction to examine the claim that the law was
contrary to the Constitution.
Neither of the cases on which Mr. Sobitan relies, how-
ever, speaks to the issue here: Whether the plain meaning
of the term statute includes treaties. At most, the cases
relied upon by Mr. Sobitan demonstrate that, in some
contexts, the term “statute” may take on a special meaning.
2.
Seizing on this idea, Mr. Sobitan next argues that the
term “statute” is ambiguous, and, therefore, the court
must look to legislative history to inform our interpreta-
tion.
However, “[a]mbiguity is a creature not of definitional
possibilities but of statutory context.” Brown v. Gardner,
513 U.S. 115, 118 (1994) (citing King v. St. Vincent’s Hosp.,
502 U.S. 215, 221 (1991)). Here, the statutory context
makes it clear that “statute” does not have the broader
meaning of any enactment—such as the Constitution or
a treaty—that has the force of law. As previously set
forth, § 2679(b)(2) provides:
No. 07-3119 15
(2) Paragraph (1) does not extend or apply to a civil
action against an employee of the Government—
(A) which is brought for a violation of the Consti-
tution of the United States, or
(B) which is brought for a violation of a statute of
the United States under which such action
against an individual is otherwise authorized.
28 U.S.C. § 2679(b)(2). If Congress had meant the term
“statute of the United States” in § 2679(b)(2)(B) to
include all enactments with the force of law—including
constitutions and treaties—there would have been no
reason to have a separate section, here § 2679(b)(2)(A),
which excepts claims for violations of the Constitution.
Indeed, adopting the broader definition of the term
“statute” urged by Mr. Sobitan would render subsection
(b)(2)(A) superfluous, a result we try to avoid. See, e.g.,
United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008)
(“We avoid interpreting a statute in a way that renders
a word or phrase redundant or meaningless.”).
3.
Mr. Sobitan next maintains that “treaties are recognized
as ‘laws’ of the United States, a term generally synony-
mous with ‘statutes.’ ” Appellant’s Br. 12. In essence,
Mr. Sobitan posits that, because treaties are laws and
because statutes also are laws, the two are one in the
same. There is no reason, however, to believe that two
subsets (statutes and treaties) of the same larger set (laws)
are interchangeable with one another. Indeed, Mr. Sobitan
16 No. 07-3119
has not pointed to a single authority that uses the terms
statute and treaty interchangeably. Instead, all of
Mr. Sobitan’s authorities stand for the unremarkable
principle that treaties, along with the Constitution and the
laws of the United States, “shall be the supreme Law of
the Land.” U.S. Const. Art. VI, cl.2. For example,
Mr. Sobitan points to Whitney v. Robertson, 124 U.S. 190,
194 (1888), which states:
By the constitution, a treaty is placed on the same
footing, and made of like obligation, with an act of
legislation. Both are declared by that instrument to
be the supreme law of the land, and no superior
efficacy is given to either over the other. When the two
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; but, if the two are inconsistent, the
one last in date will control the other. . . .
Again, the Court merely acknowledges that the Con-
stitution places treaties and statutes on the “same footing”;
however, both the Constitution and the Court explicitly
differentiate between “act[s] of legislation” and
“treat[ies].” Id.
4.
Finally, we note that every court to consider the issue
has determined that the Westfall Act’s exemption for
statutory claims does not include claims brought
pursuant to a treaty. In Bansal v. Russ, 513 F. Supp. 2d 264No. 07-3119 17
(E.D. Penn. 2007), the plaintiff asserted, among other
claims, a violation of his consular rights under Article 36
and invoked the Alien Tort Statute, 28 U.S.C. § 1350, as the
basis for his right to recover. The district court held:
Article 36 of the Vienna Convention on Consular
Relations requires that an arrested foreign national be
informed of his right to contact his consulate. Vienna
Convention on Consular Relations, Apr. 24, 1963, 21
U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, Art. 36.
The Alien Tort Statute (“ATS”) establishes jurisdic-
tion in the district courts over civil actions by aliens
for torts committed in violation of a treaty of the
United States. Jogi v. Voges, 480 F.3d 822, 825 (7th Cir.
2007) (citing Sosa v. Alvarez-Machain, 542 U.S. 692(2004)). The ATS does not itself create a cause of action;
rather, it provides a procedural mechanism through
which an alien Plaintiff may bring suit for violation of
the law of nations or a treaty of the United States.
Turkmen v. Ashcroft, Civ. A. No. 02-2307, 2006 WL
1662663, at *50 (E.D.N.Y. June 14, 2006).
The Liability Reform Act provides that for civil
actions based on the wrongful conduct of federal
employees acting within the scope of their employ-
ment, the only remedy is an action under the Federal
Tort Claims Act (“FTCA”) against the United States
itself. 28 U.S.C. § 2679(b)(1). The only two exclusions to
the Liability Reform Act—constitutional claims and for
claims based on statutes of the United States which autho-
rize actions against an individual—do not apply to Plain-
tiff’s claim under Article 36. See Turkmen, 2006 WL
1662663, at *50.
18 No. 07-3119
Bansal, 513 F. Supp. 2d at 280 (parallel citations omitted;
emphasis added). In short, the district court realized
that Article 36 had to be the source of the plaintiff’s
substantive relief, but determined that claims under
Article 36 did not fall within the Westfall Act’s excep-
tion for violations of a “statute of the United States.”
This rationale is not limited to claims brought pursuant
to the Vienna Convention, but claims asserted pursuant
to other treaties as well. For instance, in In re: Iraq and
Afghanistan Detainees Litigation, 479 F. Supp. 2d 85(D.D.C. 2007), the district court stated:
The plaintiffs’ argument that Geneva Convention IV,
a treaty, also falls within the statutory exception to
the Westfall Act is equally unsound. Because the
term “statute” is undefined, this Court will again
resort to traditional cannons of statutory interpreta-
tion and look to the plain meaning of the word.
[F.D.I.C. v.] Meyer, 510 U.S. [471,] 476 [(1994)]. In this
case, the term “statute” is generally recognized to
mean “a law enacted by the legislative branch of a
government.” Merriam-Webster’s Collegiate Dictio-
nary at 1149. The Westfall Act exception for viola-
tions of statutes further states that it applies
to statutes “of the United States.” 28 U.S.C.
§ 2679(b)(2)(B). Thus, taken as a whole, the Westfall
Act’s exception unmistakably applies to a law enacted
by the legislative branch of the United States, i.e.,
Congress. Treaties are not enacted by the legislative
branch. Treaties are international agreements made
by the President with the advice and consent of Con-
No. 07-3119 19
gress pursuant to Article II of the Constitution. See, e.g.,
Restatement (Third) of the Foreign Relations Law
of the U.S. § 303 cmt. a (1987). See also Whitney v.
Robertson, 124 U.S. 190, 194 (1888) (stating that “[a]
treaty is primarily a contract between two or more
independent nations, and is so regarded by writers on
public law”). Because Geneva Convention IV is not a
law enacted by Congress it does not fall within the Westfall
Act’s exception for statutes.
Id. at 112 (parallel citations omitted; emphasis added).
In sum, the term “statute of the United States,” as used
in § 2679(b)(2)(B), means a law of the United States
passed by both houses of Congress and signed by the
President; it does not encompass treaties. Thus, Mr.
Sobitan’s claim for relief for violation of his rights under
the Vienna Convention does not fall within an exception
to the Westfall Act’s substitution provision. Con-
sequently, the district court correctly substituted the
United States as defendant, and Mr. Sobitan’s claim
must proceed against the United States.
C. Dismissal
As we already have noted, once the Attorney General has
certified that an individual Government officer was
acting within the scope of his employment at the time of
the incident in question, any claim based on the incident
“shall proceed in the same manner as any action against
the United States filed pursuant to section 1346(b) of this
title and shall be subject to the limitations and exceptions
20 No. 07-3119
applicable to those actions.” 28 U.S.C. § 2679(d) (emphasis
added). We turn, therefore, to 28 U.S.C. § 1346(b) to
determine if any limitations or exceptions set forth in
that section preclude Mr. Sobitan’s Vienna Convention
claim against the United States.
For its part, 28 U.S.C. § 1346 grants “exclusive jurisdic-
tion” to the district courts for
civil actions on claims against the United States, for
money damages, . . . for injury or loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment, under circumstances where
the United States, if a private person, would be liable
to the claimant in accordance with the law of the
place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). The Court has held that “the scope
of jurisdiction” set forth in § 1346 is coextensive with
the United States’ “waiver of sovereign immunity.” F.D.I.C.
v. Meyer, 510 U.S. 471, 479 (1994). In other words, the
United States has waived its sovereign immunity only
with respect to claims described in § 1346(b), specifically
claims for which a private person “would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.” 5
5
As noted earlier in the text, the parties do not contend that
any other statute waives the sovereign immunity of the
United States in cases such as this one. Cf. F.D.I.C. v. Meyer, 510
(continued...)
No. 07-3119 21
In Meyer, the Supreme Court explained in some detail
the meaning of this language and how it precluded the
plaintiff from pursuing the constitutional claim at issue
in that case:
As noted above, to be actionable under § 1346(b), a
claim must allege, inter alia, that the United States
“would be liable to the claimant” as “a private person”
“in accordance with the law of the place where the
act or omission occurred.” . . . [W]e have con-
sistently held that § 1346(b)’s reference to the “law of
the place” means law of the State—the source of
substantive liability under the FTCA. See, e.g., Miree
v. DeKalb County, 433 U.S. 25, 29, n.4 (1977); United
States v. Muniz, 374 U.S. 150, 153 (1963); Richards [v.
United States, 369 U.S. 1,] 6-7, 11 [(1962)]; Rayonier Inc.
v. United States, 352 U.S. 315, 318 (1957). By definition,
federal law, not state law, provides the source of
liability for a claim alleging the deprivation of a
federal constitutional right. To use the terminology of
Richards, the United States simply has not rendered
itself liable under § 1346(b) for constitutional tort
claims.
Id. at 477-78 (parallel citations omitted).
The Court’s reasoning in Meyer applies with equal force
to claims brought pursuant to international treaty. An
5
(...continued)
U.S. 471, 480-83 (1994) (considering whether a source other
than § 1346(b) provided a waiver of sovereign immunity that
would allow the plaintiff’s claim to proceed).
22 No. 07-3119
international treaty is no more the law of the place than
the federal Constitution, and, therefore, under § 1346(b),
the United States “simply has not rendered itself liable”
for these types of claims.
In sum, once the Government has been substituted for
a federal officer under 28 U.S.C. § 2679(b), the action must
proceed against the United States and is subject to the
“limitations and exceptions” for claims brought pursuant
to 28 U.S.C. § 1346(b). One limitation is that the source
of substantive law on which the plaintiff relies must be
“the law of the place where the act or omission oc-
curred,” that is, state tort law. If the plaintiff’s claim is not
cognizable under state tort law, it does not fall within the
sovereign’s waiver of immunity and must be dismissed.6
6
We note that Congress has enacted a very different statutory
scheme to govern state employees. Section 1983 of Title 42
grants an affirmative right to any “citizen . . . or other person”
to seek redress for “the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” of the
United States by anyone acting under color of state law. 42
U.S.C. § 1983. Thus, § 1983 provides a means for an individual
to vindicate a state officer’s alleged violation of consular rights
under Article 36 of the Vienna Convention. See Jogi v. Voges,
480 F.3d 822, 826-28 (7th Cir. 2007). By contrast, Congress has
not enacted an equivalent statutory right to proceed against
federal employees. Instead, it has provided federal employees
an affirmative protection from suit through the substitution
provision of the Westfall Act and further has limited the
possibility of redress by making any action subject to the
exceptions and limitations applicable to actions against the
sovereign.
No. 07-3119 23
Here, the source of Mr. Sobitan’s claims is not state
tort law, but international treaty.7 His claim, there-
fore, does not fall within the United States’ waiver of its
sovereign immunity in § 1346(b), and the district court
properly dismissed his claim.
Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court.
A FFIRMED
7
Even if we could not reach this conclusion based on the
Court’s rationale in Meyer, Mr. Sobitan has acknowledged that
the FTCA does not provide a remedy for the claims set forth
in his complaint. See Appellant’s Supp. Br. 4 (observing that
“[c]laims asserting violations of treaties do not arise under
state tort law, and therefore are not within the coverage of
the FTCA”).
12-9-09