Wuterich v. Murtha

• Decision Date: 14 April 2009
• Docket Number: No. 07-5379.,07-5379.
• Citation: 562 F.3d 375
• Parties: Frank D. WUTERICH, Appellee v. John MURTHA, Congressman, and United States of America, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

562 F.3d 375

Frank D. WUTERICH, Appellee v. John MURTHA, Congressman, and United States of America, Appellants.

No. 07-5379.

United States Court of Appeals, District of Columbia Circuit.

Argued November 18, 2008.

Decided April 14, 2009.

Darrell C. Valdez, Assistant U.S. Attorney, argued the cause for appellants. With him on the briefs were Gregory G. Katsas, Assistant Attorney General, U.S. Department of Justice, Jeffrey A. Taylor, U.S. Attorney, Thomas M. Bondy, Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Mark S. Zaid argued the cause for appellee. With him on the brief was Bradley P. Moss.

Before: HENDERSON and ROGERS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

This case involves an important question concerning the scope of absolute immunity under the Westfall Act. See 28 U.S.C. § 2679. The Westfall Act "accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (citing 28 U.S.C. § 2679(b)(1)). "When a federal employee is sued for wrongful or negligent conduct, the Act empowers the Attorney General to certify that the employee `was acting within the scope of his office or employment at the time of the incident out of which the claim arose.' Upon the Attorney General's certification, the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee." Id. at 229-30, 127 S.Ct. 881 (quoting 28 U.S.C. § 2679(d)(1), (2)).

In this case, U.S. Marine Frank D. Wuterich sued Congressman John Murtha, alleging that the Congressman made false and defamatory statements to the press about the role of Wuterich's squad in the deaths of civilians in Haditha, Iraq in 2005. Congressman Murtha invoked the protections of the Westfall Act and the Attorney General's designee certified that the Congressman was acting within the scope of his employment at the time he uttered the contested statements. The District Court denied the Government's certification pending Wuterich's discovery on the scope-of-employment issue. Wuterich's discovery demands included a several hour deposition of the Congressman and 25 document production requests. Congressman Murtha and the United States now appeal the District Court's denial of the Attorney General's certification.

In Osborn, the Supreme Court held that a defendant in a Westfall Act case may seek immediate review of a district court's denial of a Westfall Act certification because such a decision "effectively denie[s]" the employee immunity from suit. 549 U.S. at 238, 127 S.Ct. 881. Because the District Court's denial of certification pending discovery effectively denied Congressman Murtha the absolute immunity from suit guaranteed him by the Westfall Act, this court has jurisdiction to hear this appeal. It is no answer that the District Court merely reserved judgment on certification pending discovery. The law is clear that limited discovery is permitted in a Westfall Act case only when a plaintiff "allege[s] sufficient facts that, taken as true, would establish that the defendant['s] actions exceeded the scope of [his] employment." Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.Cir.2003). Because Wuterich has failed to meet even this minimal pleading burden, we vacate the District Court's order denying certification pending discovery and remand the case with instructions to the District Court to substitute the United States as the defendant in place of Congressman Murtha. Because the United States has not waived its sovereign immunity for Wuterich's tort claims, the District Court will be required to dismiss his complaint for lack of subject matter jurisdiction.

I. BACKGROUND

Frank D. Wuterich is a Staff Sergeant in the U.S. Marine Corps, who in November 2005 led a squad stationed in Iraq. On November 19, 2005, a roadside bomb detonated in the city of Haditha, killing a member of Wuterich's squad. In the fighting that followed, two dozen Iraqi civilians were killed.

On August 2, 2006, Wuterich filed suit against John Murtha, the Congressman from Pennsylvania's Twelfth Congressional District and then-Ranking Member of the House Appropriations Committee's Subcommittee on Defense, for libel, invasion of privacy/false light, and republication of defamatory statements by third parties. According to Wuterich, Congressman Murtha gave a series of interviews to the media in the wake of the Haditha incident, during which he made defamatory comments about the role of Wuterich's squad in the deaths of the Iraqi civilians. Wuterich specifically alleges that Congressman Murtha was one of several Members of Congress briefed on the ongoing investigation into the deaths at Haditha in the spring of 2006 and that, based on inaccurate information learned during these briefings, Congressman Murtha made statements about the Marines involved in the incident to National Public Radio and CNN, among other media outlets. Wuterich further alleges that Congressman Murtha's statements to the press "provide the impression, implicitly or explicitly, that SSgt Wuterich and others deliberately murdered innocent Iraqi civilians in a cold-blooded massacre" and "inappropriately compared the tragic events of Haditha with the infamous war crimes and deliberate wide-spread massacre of civilians at My Lai in Vietnam." Compl. ¶¶ 24, 20. In addition, Wuterich claims that Congressman Murtha's "comments were made outside of the scope of his employment as a U.S. Congressman and [were] intended to serve his own private purposes and interests." Id. ¶ 23.

On May 7, 2007, the Attorney General's designee invoked the Westfall Act and certified that "United States Congressman John Murtha was acting within the scope of his employment as an employee of the United States at the time of the alleged incidents." Westfall Certification (May 7, 2007), reprinted in Joint Appendix ("J.A.") 138. Upon filing the certification, the United States and Congressman Murtha moved to substitute the United States as the defendant and to dismiss the case for lack of subject matter jurisdiction because the United States had not waived sovereign immunity for Wuterich's tort claims. See Mot. to Substitute Def. and Dismiss for Lack of Subject Matter Jurisdiction (May 7, 2007), J.A. 30-47; 28 U.S.C. § 2680(h) (excepting "[a]ny claim arising out of ... libel [or] slander" from the federal government's waiver of sovereign immunity). Along with this motion, the United States and Congressman Murtha submitted a declaration from Congressman Murtha's former Communications Director Cynthia Abram, who stated that three of the media interviews were taped in Pennsylvania when the Congressman "was in his congressional district during a district work period." Abram Decl. ¶ 5 (May 2, 2007), J.A. 60. The Abram declaration stated that the interviews were not campaign related and explained that they were conducted in Congressman Murtha's campaign office because that office was easily accessible to the broadcasters. Id., J.A. 60-61.

At the September 28, 2007 hearing on the Government's motion, Wuterich's counsel asserted to the District Court that he had alleged sufficient facts to rebut the Government's certification and to obtain discovery, including a deposition of Congressman Murtha and "five or so document production requests." Mot. Hr'g Tr. 25-26 (Sept. 28, 2007), J.A. 332-33. In particular, Wuterich's counsel noted that he had learned just that morning from a potential witness that Congressman Murtha was "personally offended" that then-Secretary of Defense Donald Rumsfeld had refused to meet with him and was using the Haditha comments to "embarrass" Rumsfeld. Id. at 24-25, J.A. 331-32.

At the close of the hearing, the following exchange took place:

THE COURT: I am unable at this stage to know exactly where the lines should be drawn.... I would be personally much more comfortable if I knew a few more of the facts so that I could write a decision that distinguished those facts to say okay, here's this line and here's this line.... And I think I need to let the plaintiff at least take limited discovery, totally limited to scope of employment. Not anything else. Not anything else. Just scope of employment. That is a deposition from the Congressman and some document requests. I think we can limit it to that.

GOVERNMENT: Your Honor, I understand that's where you're going. But I would say that in order to do that, Your Honor, the law requires you to find that he has alleged facts to create a material dispute.

THE COURT: Well, I'll find that he has alleged, not in the complaint, but here he has alleged facts that Congressman Murtha was not acting in a, as he did in order to advance his legislative agenda or his desire to withdraw the troops but instead harping on Haditha as a way to embarrass the Secretary of Defense. Whether that's within a Congressman's scope of employment is also arguable.

Id. at 33-34, J.A. 340-41 (emphasis added). In a minute order entered the day of the hearing, the District Court reiterated that plaintiff could "conduct discovery limited to the issue of whether Congressman Murtha was acting in the scope of his employment at the time he made the alleged defamatory statements." Minute Entry Order, Wuterich v. Murtha, No. 06-cv-01366 (D.D.C. Sept. 28, 2007), J.A. 4.

Following the hearing, Wuterich noticed Congressman Murtha's deposition and served 25 document production requests "seeking each and every document relating or referring to the incident at Haditha, as well as each and every document relating or referring to every conversation Congressman Murtha had with any person regarding the incident at Haditha." Order at 3 n. 1, Wuterich v. Murtha, No. 06-cv-01366 (D.D.C. Dec. 17, 2007) (citation omitted), J.A. 304. On ...