Federal Statutes - Westfall Act - D.C. Circuit Holds That U.S. Officials Are Immune from Alien Tort Statute Claims

Harvard Law Review, February 2012 | Go to article overview

Federal Statutes - Westfall Act - D.C. Circuit Holds That U.S. Officials Are Immune from Alien Tort Statute Claims


FEDERAL STATUTES--WESTFALL ACT--D.C. CIRCUIT HOLDS THAT U.S. OFFICIALS ARE IMMUNE FROM ALIEN TORT STATUTE CLAIMS.--Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011).

Despite the numerous detainee cases working their way through the federal courts, Congress has yet to state clearly whether tort claims alleging torture in U.S. custody should be allowed to proceed. (1) In this legislative vacuum, detainees have faced an unsympathetic federal judiciary, which tends to defer to the Executive. (2) This approach lowers the likelihood that Congress will provide guidance because it reduces the Executive's incentives to lobby for up-dated statutes. (3) Recently, in Ali v. Rumsfeld, (4) the D.C. Circuit held that the Westfall Act (5) immunizes U.S. officials from claims brought under the Alien Tort Statute (6) (ATS) for actions within the scope of their employment. (7) The court's textualist opinion downplayed the Westfall Act's ambiguity following the Supreme Court's holding in Sosa v. Alvarez-Machain. (8) Given this ambiguity, the D.C. Circuit could have arrived at a contrary holding that would have been more likely to elicit congressional input.

Congress enacted the Westfall Act in 1988 to supersede the Supreme Court's decision in Westfall v. Erwin. (9) In holding that government employees could be liable in tort for nondiscretionary actions within the scope of their employment, (10) that case "eroded the common law tort immunity previously available to Federal employees." (11) The Westfall Act amended the Federal Tort Claims Act (12) (FTCA) to require that the United States be substituted as the defendant in any tort suit brought against a government employee acting within the scope of her employment. (13) Substitution is not applicable, however, when the defendant's alleged con-duct violates the Constitution or a federal statute authorizing a civil claim against an individual. (14)

Enacted by the First Congress, (15) the ATS provides federal jurisdiction over "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." (16) In 1980, in Filartiga v. Pena-Irala, (17) the Second Circuit construed this then-"rarely-invoked provision" as opening the federal courts to claims premised on violations of "universally accepted" international law norms--including "deliberate torture perpetrated under color of official authority." (18) Implicit in this holding was the conclusion that a separate cause of action was unnecessary. (19) While some judges and scholars criticized this conclusion, (20) many federal courts accepted it, leading to a wave of human rights litigation. (21)

In, the Supreme Court weighed in, holding in Sosa that the ATS was a "jurisdictional statute creating no new causes of action." (22) But because the Court's inquiry into the statute's history turned up no evidence that Congress intended it "to sit on the shelf" awaiting legislative causes of action, the Court also held that judges had authority to recognize "claim[s] under the law of nations as an element of common law." (23) The Court cautioned that judges should carefully craft substantive rights to match only widely accepted international law norms, citing Filartiga's treatment of official torture as having identified an appropriately well-established prohibition. (24)

In 2006, the Ali plaintiffs--five Iraqi citizens and four Afghani citizens--sued four senior Defense Department officials, including former Secretary of Defense Donald Rumsfeld, alleging abuse during their detentions at American facilities in Iraq and Afghanistan. (25) The plaintiffs asserted tort claims under the Fifth and Eighth Amendments, (26) the Geneva Conventions, and the law of nations prohibitions on official torture and "cruel, inhuman or degrading treatment." (27) The district court dismissed each claim, holding that the Fifth and Eighth Amendments did not apply to the plaintiffs (28) and that the Westfall Act precluded the law of nations and Geneva claims, which were brought under the ATS.

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