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Saleh v. Bush

United States District Court, N.D. California

December 19, 2014

SUNDUS SHAKER SALEH, Plaintiff,
v.
GEORGE W. BUSH, et al., Defendants

For Sundus Shaker Saleh on behalf of herself & those similarly situated, Plaintiff: Dave Inder Comar, LEAD ATTORNEY, Comar Law, San Francisco, CA.

For George W. Bush, Richard B. Cheney, Donald H. Rumsfeld, Condoleezza Rice, Colin L. Powell, Paul M. Wolfowitz, The United States, Defendant: Glenn Stewart Greene, LEAD ATTORNEY, United States Department of Justice, Civil Division, Washington, DC.

ORDER DENYING PLAINTIFF'S MOTION FOR AN EVIDENTIARY HEARING AND GRANTING DEFENDANTS' MOTION TO DISMISS

JON S. TIGAR, United States District Judge.

Before the Court are Plaintiff Sundus Shaker Saleh's Osborn Motion for an Evidentiary Hearing in Support of her Second Amended Complaint, ECF No. 38, and Defendants' Motion to Dismiss, ECF No. 43. For the reasons set forth below, the motion for an evidentiary hearing is DENIED and the motion to dismiss is GRANTED.

I. BACKGROUND

Plaintiff Saleh brings this action on her own behalf and on behalf of a putative class of Iraqi civilians against former President George W. Bush, former Vice President Richard Cheney, former Secretary of Defense Donald Rumsfeld, former National Security Advisor Condoleeza Rice, former Secretary of State Colin Powell, and former Deputy Secretary of Defense Paul Wolfowitz (" Defendants"). ECF No. 37. Saleh alleges that Defendants " broke the law in conspiring and committing the Crime of Aggression against the people of Iraq" when they engaged the United States in war with Iraq. Id. ¶ 1. She alleges that Defendants' actions violated international law, citing sources of international law including the Kellogg-Briand Pact, the United Nations Charter, and the Nuremberg Charter. Id. ¶ ¶ 139-44, 149-54.

On May 19, 2014, the Court granted Defendants' Motion to Dismiss Saleh's First Amended Complaint and permitted Saleh to file an amended complaint addressing the deficiencies identified by the Court. ECF No. 35. Saleh filed her Second Amended Complaint on June 8, 2014, ECF No. 37, and her motion requesting an evidentiary hearing the following day, ECF No. 38. On June 23, 2014, the United States filed its Notice of Substitution of the United States as Sole Defendant pursuant to the Westfall Act, 28 U.S.C. § 2679(b), and its motion to dismiss the operative complaint for lack of subject matter jurisdiction. ECF Nos. 42, 43. The Court will address the motion for an evidentiary hearing and the motion to dismiss in turn.

II. PLAINTIFF'S MOTION FOR AN EVIDENTIARY HEARING

On behalf of the Attorney General, the Director of the Torts Branch of the United States Department of Justice has certified that each individual Defendant in this case was acting within the scope of his or her federal office or employment at the time of the incidents out of which Saleh's claims arise. ECF No. 42-1. Plaintiff seeks an evidentiary hearing to challenge the certification of scope of employment or, in the alternative, an Order from the Court that it will assume the truth of the factual allegations in the complaint for the purposes of challenging the certification. ECF No. 38. For the reasons below, the motion is DENIED.

A. The Westfall Act

The Westfall Act confers immunity on federal employees by making a Federal Tort Claims Act (" FTCA") action against the Government " the exclusive remedy for torts committed by Government employees in the scope of their employment." United States v. Smith, 499 U.S. 160, 163, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991); 28 U.S.C. § 2679(b)(1). The act provides that:

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.

28 U.S.C. § 2679(d)(1). The exclusivity of the FTCA remedy is applicable even if it bars a plaintiff's recovery. See Smith, 499 U.S. at 166 (" Congress recognized that the required substitution of the United States as the defendant in tort suits filed against Government employees would sometimes foreclose a tort plaintiff's recovery altogether.").

" Certification by the Attorney General is prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident and is conclusive unless challenged." Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). The party seeking review of the certification " bears the burden of presenting evidence and ...


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