Bush Administration Officials Immune From Iraq War-Related Tort: Ninth Circuit | Practical Law

Bush Administration Officials Immune From Iraq War-Related Tort: Ninth Circuit | Practical Law

In Saleh v. Bush, the US Court of Appeals for the Ninth Circuit held that former Bush administration officials were entitled to official immunity under the Westfall Act from a suit alleging violations of the Alien Tort Statute (ATS) related to the 2003 invasion of Iraq.

Bush Administration Officials Immune From Iraq War-Related Tort: Ninth Circuit

Practical Law Legal Update w-006-3521 (Approx. 3 pages)

Bush Administration Officials Immune From Iraq War-Related Tort: Ninth Circuit

by Practical Law Litigation
Published on 14 Feb 2017 • USA (National/Federal)
In Saleh v. Bush, the US Court of Appeals for the Ninth Circuit held that former Bush administration officials were entitled to official immunity under the Westfall Act from a suit alleging violations of the Alien Tort Statute (ATS) related to the 2003 invasion of Iraq.
On February 10, 2017, in Saleh v. Bush, the US Court of Appeals for the Ninth Circuit held that former Bush administration officials were entitled to official immunity under the Westfall Act from a suit alleging violations of the Alien Tort Statute (ATS) related to the 2003 invasion of Iraq. (No. 15-15098 (9th Cir. Feb. 10, 2017).)
An Iraqi plaintiff sued former Bush administration officials under the ATS on behalf of herself and similarly situated individuals who suffered damage due to the invasion of Iraq. She claimed that the defendants had advocated for an invasion of Iraq before taking office and continued to pursue the policy once in office even when the available evidence failed to justify the invasion, thereby demonstrating an intent to invade Iraq from the beginning. She alleged that this constituted a "crime of aggression" which violated the "law of nations" under the ATS.
The US filed a certification that the defendants had been acting within the scope of their federal employment and under the Westfell Act, 28 U.S.C. § 2679(d)(1), the US was substituted as the sole defendant. Because the plaintiff had failed to exhaust her administrative remedies as required by the Federal Tort Claims Act for claims against the US, the district court dismissed the action. The plaintiff appealed, arguing that the defendants were not acting within the scope of their office and therefore should not be afforded immunity.
The Ninth Circuit affirmed. The court explained that under the Westfell Act, federal employees enjoy absolute immunity from tort claims arising out of acts they undertake in the course of their official duties. Federal courts apply the principles of respondeat superior of the state in which the alleged tort occurred to decide whether the acts were undertaken in the scope of employment. Applying the District of Columbia's respondeat superior principles, the Ninth Circuit decided that the defendants were acting in the scope of their employment because:
  • The alleged tortious act, the invasion of Iraq, took place once the defendants were in office, so they could not plan the invasion before they took office but could merely advocate for it.
  • Pre-employment statements of intent or belief cannot take the later acts of public officials outside the scope of their employment.
  • A preference for a certain policy, followed by an implementation of that policy, is not the same as performing an official act for personal gain, which would put it outside the scope of employment.
The court also rejected the plaintiff's argument that the defendants' alleged performance of an act condemned by a treaty put it outside the scope of employment.