Harbury v. Hayden

• Citation: 522 F.3d 413
• Decision Date: 15 April 2008
• Docket Number: No. 06-5282.,06-5282.
• Parties: Jennifer K. HARBURY on her Own Behalf and as Administratrix of the Estate of Efrain Bamaca-Velasquez, Appellant v. Michael V. HAYDEN, Director, Central Intelligence Agency (CIA), et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

522 F.3d 413

Jennifer K. HARBURY on her Own Behalf and as Administratrix of the Estate of Efrain Bamaca-Velasquez, Appellant v. Michael V. HAYDEN, Director, Central Intelligence Agency (CIA), et al., Appellees.

No. 06-5282.

United States Court of Appeals, District of Columbia Circuit.

Argued October 22, 2007.

Decided April 15, 2008.

Appeal from the United States District Court for the District of Columbia (No. 96cv00438).

Jennifer K. Harbury, appearing pro se, argued the cause and filed the briefs for appellant. Beth Stephens and Mara E. Verheyden-Hilliard entered appearances.

Tyler Giannini was on the brief for amicus curiae United States Representative Barney Frank in support of appellant.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, C. Frederick Beckner III, Deputy Assistant Attorney General, and Barbara L. Herwig, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: RANDOLPH and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge RANDOLPH joins, and with whom Senior Circuit Judge WILLIAMS joins except as to the second sentence of footnote five.

KAVANAUGH, Circuit Judge:

In the early 1990s, members of the Guatemalan army killed rebel fighter Efrain Bamaca-Velasquez during Guatemala's civil war. Bamaca's widow, Jennifer Harbury, sued various U.S. Government officials, claiming they were legally responsible for the physical abuse and death of her husband. The District Court long ago dismissed most of Harbury's claims. Harbury now appeals the District Court's order dismissing her common-law tort claims. We affirm for either of two alternative jurisdictional reasons: (1) Under this Court's precedents, the case presents a nonjusticiable political question; or (2) the Federal Tort Claims Act applies to Harbury's claims, and the FTCA bars suits based on injuries that occurred in a foreign country.

I

Jennifer Harbury is a U.S. citizen and the widow of Efrain Bamaca-Velasquez, who was a citizen of Guatemala and a commander of rebel forces in that country's 35-year civil war. According to Harbury, in the 1990s the U.S. Central Intelligence Agency hired and trained Guatemalan army officers as informants so that the CIA could gather information about the rebel forces. Harbury alleges that the CIA obtained information from the Guatemalan army officers and shared it with the White House and the State Department during the Administrations of President George H.W. Bush and President Clinton. Harbury claims, moreover, that "it was understood . . . and/or intended by the CIA that this information would be obtained through torture and similar means." Second Amended Complaint at 11, Harbury v. Hayden, 444 F.Supp.2d 19 (D.D.C.2006) (Civ. No. 96-438).

Harbury specifically contends that Bamaca was captured in March 1992 by Guatemalan army officers affiliated with the CIA. The CIA allegedly reported to the White House and U.S. Government agencies that its Guatemalan counterparts had captured Bamaca "and that they would probably fabricate his combat death in order to be able to maximize their ability to extract information" from him. Id. at 9. At the same time that the Guatemalan army publicly maintained that Bamaca had committed suicide, its officers allegedly "detained, psychologically abused and physically tortured" Bamaca in an attempt to get information from him. Id. According to Harbury, the Guatemalan officers then killed Bamaca.

Harbury initially sued and sought damages from many U.S. Government officials in their personal capacities — (i) at the CIA, Directors John M. Deutch, R. James Woolsey, and Robert M. Gates; Deputy Directors David Cohen, John J. Devine, Thomas A. Twetten, John C. Gannon, Douglas J. MacEachin, and John L. Helgerson; Latin American Division Chief Terry R. Ward; National Intelligence Officer Brian Latelle; National Intelligence Council Chiefs Richard N. Cooper, Christine N. Williams, Joseph S. Nye, and Fritz W. Esmarth; Guatemala Station Chiefs Dan Donahue and Frederick A. Brugger; and "unnamed employees" of the CIA; (ii) at the State Department, Secretary of State Warren Christopher; U.S. Ambassador to Guatemala Marilyn MacAfee; Assistant Secretary Alexander Watson; Deputy Assistant Secretary Anne Patterson; Guatemala Desk Officer Peg Willingham; and "unnamed employees" of the State Department; and (iii) at the National Security Council, National Security Advisor Anthony Lake; NSC staff member Richard E. Feinberg; and "unnamed employees" of the National Security Council. See id. at 1-2, 5-8.

The District Court previously dismissed most of Harbury's claims. See Harbury v. Hayden, 444 F.Supp.2d 19, 24 (D.D.C. 2006) (citing cases and orders); see also Christopher v. Harbury, 536 U.S. 403, 405, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).

Harbury's only remaining claims are common-law tort claims against the individual CIA Defendants. Harbury alleges that the individual CIA Defendants conspired to cause Bamaca's imprisonment, torture, and execution; negligently supervised their Guatemalan counterparts, resulting in Bamaca's injury and death; and caused emotional distress to Harbury as a result of Bamaca's injury and death. The District Court dismissed these claims under Federal Rule of Civil Procedure 12(b)(1). Harbury now appeals; our review is de novo.

II

To explain the District Court's decision and Harbury's appeal, we begin with a brief overview of the Federal Tort Claims Act and the Westfall Act.

The Federal Tort Claims Act is a limited waiver of the Government's sovereign immunity. Under the FTCA, plaintiffs may sue the United States in federal court for state-law torts committed by government employees within the scope of their employment. 28 U.S.C. §§ 1346(b), 2671-80. But the FTCA does not create a statutory cause of action against individual government employees.

If a plaintiff files a state-law tort suit against an individual government employee, a companion statute — the Westfall Act — provides that the Attorney General may certify that the employee was acting within the scope of employment "at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(1). Upon the Attorney General's certification, the tort suit automatically converts to an FTCA "action against the United States" in federal court; the Government becomes the sole party defendant; and the FTCA's requirements, exceptions, and defenses apply to the suit. Id.¹

In many cases, the Attorney General's certification begins and ends the scope-of-employment analysis. The Government takes over as the sole party defendant, and the suit proceeds under the FTCA. From the plaintiff's perspective, this can produce a net positive: Although the plaintiff must now litigate against the Federal Government, the original defendant — a potentially judgment-proof federal employee — has been replaced by the seemingly bottomless U.S. Treasury.

Plaintiffs do not always view certification so charitably, however. As mentioned earlier, the FTCA is a limited waiver of sovereign immunity. The Act contains several exceptions — for example, it does not apply to claims for lost mail, suits in admirality, claims arising out of the military's combatant activities during wartime, claims based on discretionary functions, or claims that arise in foreign countries, among other exceptions. See 28 U.S.C. § 2680. When one of the FTCA's exceptions applies — that is, when the Government has not waived its sovereign immunity — the Attorney General's scope-of-employment certification has the effect of converting the state-law tort suit into an FTCA case over which the federal courts lack subject-matter jurisdiction. In other words, the combination of the scope-of-employment determination and the FTCA's exceptions may absolutely bar a plaintiff's case. See United States v. Smith, 499 U.S. 160, 166, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991).

In such cases, to try to preserve their lawsuits, plaintiffs often contest the Attorney General's scope-of-employment certification. Plaintiffs typically argue that the individual government employee defendants did not act within the scope of their employment and that the suits should therefore continue as state-law tort suits against the government officials in their personal capacities. Once a plaintiff advances this argument, courts consider the scope-of-employment issue essentially de novo based on the state law of the place where the employment relationship exists. If the court agrees with the Attorney General, the suit becomes an action against the United States that is governed by the FTCA. But if the court disagrees with the Attorney General's determination, the state-law tort suit may proceed against the defendant government employee in his or her personal capacity. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 423-24, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995); Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C.Cir. 2006).

Harbury's case followed this procedural course. Among other claims, Harbury brought common-law tort claims against the individual CIA Defendants. In March 2000, Attorney General Reno certified that the individual CIA Defendants had acted within the scope of their employment. The Attorney General's certification removed the individual CIA Defendants from the tort action, substituted the United States as the sole party defendant, and rendered all of Harbury's tort claims subject to the FTCA and its exceptions, including the foreign-country exception.

Harbury then challenged the Attorney General's certification, arguing based on D.C. law that the individual CIA Defendants did not act within the scope of their employment. The District Court disagreed: It ruled that the FTCA applied to all...