Saleh v. Bush, No. 15-15098 (9th Cir. 2017)Annotate this Case
Plaintiff, who had endured many hardships in 2003 while trying to leave Baghdad, alleged, in a purported class action, that former officials of the President George W. Bush administration engaged in the war against Iraq in violation of the Alien Tort Statute, 28 U.S.C. 1350. The district court held that plaintiff had not exhausted her administrative remedies as required by the Federal Tort Claims Act. The Ninth Circuit affirmed the dismissal, holding that the individual defendants were entitled to official immunity under the Westfall Act, 28 U.S.C. 2679(d)(1), which accords federal employees immunity from common-law tort claims for acts undertaken in the course of their official duties. The court upheld the Attorney General’s scope certification (determining that the employees were acting within the scope of their employment so that the action was one against the United States). The court rejected an argument that defendants could not be immune under the Westfall Act because plaintiff alleged violations of a jus cogens norm of international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law. Congress can provide immunity for federal officers for jus cogens violations.