The opinion
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2024 Decided August 5, 2025
No. 24-7013
IZTOK PLEVNIK,
APPELLANT
v.
EUGENE R. SULLIVAN, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-00837)
Bruce Fein argued the cause and filed the briefs for
appellant.
Steven M. Cady argued the cause for appellee Eugene
Sullivan. On the brief was Eugene Sullivan, pro se.
Sean R. Janda, Attorney, U.S. Department of Justice,
argued the cause for appellee United States of America. With
him on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General, and Mark B. Stern and Joshua M.
Salzman, Attorneys.
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Before: SRINIVASAN, Chief Judge, WILKINS, Circuit
Judge, and ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Not every search for fortune
ends in riches. That may be so, per the allegations in this case,
even if the search finds the fortune.
Appellant Iztok Plevnik contends he discovered billions of
dollars that had been taken from Libya and dispersed across
Africa after the death of Muammar Gaddafi. Plevnik, though,
was never able to repatriate the funds to the United States. He
brought suit claiming he was the victim of a fraudulent plan by
his lawyer and various federal employees to steal the money he
had found and leave him stranded abroad.
The district court dismissed Plevnik’s action in two stages.
First, with respect to his claim against his lawyer, the court held
that Plevnik failed to identify any fraudulent misrepresentation
on his lawyer’s part. Second, with respect to his claim against
the federal defendants, the court allowed conversion of the
claim into one against the federal government on the basis that
the employees had been acting within the scope of their
employment, and the court then dismissed the claim on grounds
of the government’s sovereign immunity. We affirm the
district court on both scores.
I.
A.
Because the district court dismissed Plevnik’s suit as a
matter of law, we assume the truth of the allegations in his
complaint. See N’Jai v. U.S. Dep’t of Educ., 111 F.4th 1288,
3
1290 (D.C. Cir. 2024). Those allegations tell a tale of
considerable international intrigue.
Iztok Plevnik was born in Slovenia and later became a
permanent resident of the United States. Plevnik has
maintained a vibrant and varied career. At various points, he
trained with the U.S. Navy Seals and the U.S. Secret Service,
signed with the Miami Dolphins as a placekicker, and worked
as a contractor for the International Criminal Court to facilitate
prosecutions. Plevnik most recently worked as an independent
contractor for international organizations, businesses, and
individuals. That job presumably gave rise to the
circumstances of this case.
Plevnik claims he discovered billions of dollars in cash
that had been scattered across Africa following the death of
Libyan President Muammar Gaddafi. Seeking assistance with
repatriating the money to the United States, he contacted
Eugene Sullivan, a lawyer in Washington, D.C. Sullivan took
various actions in that connection. For instance, Sullivan
secured signed letters from the General Counsel of the
Treasury Department, which Plevnik claims authorized him to
repatriate the funds via a wire transfer; and Sullivan
represented Plevnik in an interview with Department of Justice
attorneys concerning the site of the discovered funds.
The repatriation process proved far from smooth. In
December 2020, Plevnik traveled to Kenya to arrange for the
repatriation of $10 billion. Nairobi law enforcement refused to
initiate a wire transfer without information authenticating the
legitimacy of the repatriation. Plevnik called Sullivan in the
early morning D.C. time and asked him to contact the State
Department to confirm the legitimacy of the Treasury
Department letters, but Sullivan refused given the early hour.
Lacking any evidence that he was seeking to legitimately
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repatriate funds, Plevnik returned to the United States empty
handed.
In July 2021, Plevnik left for another repatriation trip, this
time traveling to Abidjan, Côte d'Ivoire. He alleges he left at
least $6 billion with the Abidjan police, then returned to the
United States and told Sullivan about the funds in Abidjan.
Sullivan advised that he would have the Department of Justice
call the U.S. embassy in Abidjan to confirm the authenticity of
the Department of Treasury letters. He also emailed James
Billington—the security attaché at the U.S. embassy in
Abidjan—to inform him that the Department of Treasury
letters and Plevnik’s repatriation of the funds were legitimate.
With that plan in place, Plevnik left again for Abidjan in
August 2021. Once there, he met with Billington and provided
the Treasury Department letters. Billington, however, was
skeptical of Plevnik’s endeavor and claimed the letters were
counterfeit. Plevnik put Sullivan on the phone, who vouched
for the authenticity of the letters and provided the names and
numbers of the Treasury Department General Counsel and an
attorney with the Department of Justice, Michael Keilty.
Billington detained Plevnik for four hours while he
unsuccessfully tried to contact the Treasury Department to
confirm the authenticity of the letters. Plevnik contends that
while he was detained, unknown individuals stole the money
from the police station and replaced it with counterfeit cash.
Billington eventually allowed Plevnik to leave the
embassy. The next morning, however, Abidjan police arrested
Plevnik for allegedly laundering money and misrepresenting
U.S. documents. An Ivoirian lawyer ultimately secured his
release. When Plevnik returned to the United States, he met
with Sullivan to discuss further attempts to repatriate the funds.
While Sullivan initially said he would continue assisting with
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the repatriation efforts, he later withdrew his representation
because of the accusations of criminality against Plevnik.
B.
In March 2023, Plevnik brought this lawsuit alleging one
count of fraud against two sets of defendants. The first set
initially included Eugene Sullivan and his son, but Plevnik has
since abandoned his claim against Sullivan’s son. The second
set consists of three federal employees Plevnik encountered in
his repatriation efforts: Keilty, Billington, and Todd Brown,
the then-Acting Assistant Secretary of State for Diplomatic
Security. Plevnik alleged that all the defendants deceived him
into thinking they would support him in the repatriation process
when, in reality, they sought to discover the location of the
funds, arrange for his demise in Côte d'Ivoire, and claim the
money for themselves. The district court granted a dismissal
to all the defendants.
As to Sullivan, the court explained that the complaint
failed to allege any actionable misrepresentation by him.
Plevnik v. Sullivan, 2024 WL 460786, at *1 (D.D.C. Jan. 26,
2024). Sullivan stated that he would serve as Plevnik’s
attorney, and Plevnik’s own allegations in the complaint
showed that Sullivan provided legal services to Plevnik in
connection with his repatriation efforts. Id. at *4.
As to the federal employees, the United States substituted
itself as defendant pursuant to the Westfall Act, 28 U.S.C.
§ 2679(d)(1), which enables the government to do so when
federal workers are sued for actions taken within the scope of
their employment. The district court held that Plevnik failed to
rebut the Attorney General’s certification that the employees
were acting in the scope of their employment. Plevnik v.
Sullivan, 2023 WL 7279229, at *1, *4 (D.D.C. Nov. 3, 2023).
With the United States substituted as the defendant, the court
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held that sovereign immunity barred the claim. Id. at *5; see
28 U.S.C. § 2680(h), (k).
II.
Plevnik’s appeal seeks to overturn the dismissal of both his
claim against Sullivan and his claim against the federal
defendants. We reject his challenges.
A.
Plevnik first contends that the district court erred in
dismissing his fraud claim against his lawyer, Sullivan.
According to Plevnik, regardless of any legal services Sullivan
may have provided him, Sullivan acted fraudulently at the
outset of forming a contract for legal representation by
concealing his intent to steal Plevnik’s repatriation money.
That argument fails.
The parties agree that District of Columbia law governs
Plevnik’s fraud claim against Sullivan. Under District law,
breach of a contractual promise can give rise to a fraudulent
misrepresentation claim if, at the time of the contract’s
formation, the promisor had no intention to perform or knew
performance would not occur. See Bennett v. Kiggins, 377
A.2d 57, 60–61 (D.C. 1977); Va. Acad. of Clinical Psychs. v.
Grp. Hospitalization & Med. Servs., 878 A. 2d 1226, 1234
(D.C. 2005). To succeed on such a claim, a plaintiff must
“state[] with particularity” matters such as the “time, place and
content of the false misrepresentations, the fact misrepresented
and what was retained or given up as a consequence of the
fraud.” United States ex rel. Williams v. Martin-Baker Aircraft
7
Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (internal quotation
marks and citation omitted).
Plevnik’s complaint, however, fails to allege with
particularity—or really at all—any misrepresentation. The
complaint does contend that Sullivan agreed to represent
Plevnik as his lawyer. See Am. Compl. ¶ 14, J.A. 12–13. But
the complaint never alleges that Sullivan’s statement in that
regard was false, nor does it provide any facts showing that
Sullivan entered into the representation without an intent to
perform or with knowledge that performance would not occur.
To the contrary, the complaint describes actions showing
not only that Sullivan intended to provide legal representation
but that he did so. For instance, Sullivan “invariably
represented himself as [Plevnik’s] lawyer” in “email, text
massages, or letters” he sent to third parties. Id. ¶ 14, J.A. 12–
13. When Plevnik sought to initiate the repatriation process,
Sullivan secured letters from the Treasury Department to
facilitate the wire transfers. Id. ¶¶ 17–18, J.A. 13. Sullivan
remained on call to provide advice during Plevnik’s trip to
Nairobi, and he verified Plevnik’s credentials when Plevnik
went to Côte d'Ivoire. Id. ¶¶ 20, 37, J.A. 14, 16–17. And
Sullivan contacted Plevnik’s wife to ensure Plevnik could find
safe passage from Côte d'Ivoire after his detention there. Id.
¶ 39, J.A. 17.
To be sure, Plevnik’s complaint alleges that Sullivan acted
with a fraudulent intent in the course of the representation. For
example, Plevnik claims that Sullivan arranged an interview
with the Department of Justice merely “to induce [Plevnik] to
disclose the whereabouts of the 6 billion or more dollars.” Am.
Compl. ¶ 16, J.A. 13. Plevnik further alleges that Sullivan
worked to obtain letters from the Treasury Department “with
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the specific intent of deceiving [Plevnik] into disclosing the
whereabouts of the funds to be repatriated.” Id. ¶ 17, J.A. 13.
The applicable pleading standard, however, requires more
than mere “labels and conclusions” about Sullivan’s intent.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). At
any rate, the allegations concern Sullivan’s post-agreement
actions as Plevnik’s lawyer, not actions indicating that Sullivan
lacked any intent to perform when initially entering into the
lawyer-client relationship. Sullivan’s alleged actions as
Plevnik’s lawyer might show a breach of the duties of honesty
and loyalty, potentially supporting a claim of breach of
contract. See O’Neil v. Bergan, 452 A.2d 337, 341–43 (D.C.
1982). But a common law fraud claim must stand on its own,
distinct from damages flowing from a contractual claim. See
Choharis v. State Farm Fire and Cas. Co., 961 A.2d 1080,
1089 (D.C. 2008). Here, Sullivan would have no duty of
honesty or loyalty if not for the existence of a contractual
relationship in the first place. In that context, any alleged
breach of duty is not actionable as fraud.
As a final note, Plevnik asserts that the district court should
have granted him leave to amend his complaint to clarify his
fraud claim against Sullivan. But as we have explained,
“[w]hen a plaintiff fails to seek leave from the District Court to
amend [his] complaint, either before or after [his] complaint is
dismissed, [he] forfeits the right to seek leave to amend on
appeal.” City of Harper Woods Emps.’ Ret. Sys. v. Olver, 589
F.3d 1292, 1304 (D.C. Cir. 2009). Plevnik does not contend
that he sought leave from the district court. We thus have no
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ground for setting aside the district court’s dismissal of
Plevnik’s fraud claim against Sullivan.
B.
Plevnik challenges the dismissal of his fraud claim against
the federal employees on one ground: that the district court
erred in substituting the United States as defendant, which in
turn enabled a dismissal based on the government’s sovereign
immunity. We review de novo the district court’s conclusion
that the United States was properly substituted as defendant.
See Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013).
Under the Westfall Act, when a federal employee is sued
in his individual capacity, the Attorney General or her delegee
may certify “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.” 28 U.S.C. § 2679(d)(1). Upon
the certification, the civil action “shall be deemed an action
against the United States . . . and the United States shall be
substituted as the party defendant.” Id. A Westfall certification
“constitute[s] prima facie evidence that the employee was
acting within the scope of his employment.” Council of Islamic
Rels. v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2016) (per
curiam). To rebut the certification, a plaintiff must “alleg[e]
sufficient facts that, taken as true, would establish that the
defendant[’s] actions exceed the scope of [his] employment.”
Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003).
A court reviewing a Westfall certification “appli[es] the
respondeat superior law in the state in which the alleged tort
occurred” to determine whether the government employee
acted within the scope of his employment. Ballenger, 444 F.3d
at 663. The parties here do not dispute that District of
Columbia law governs the inquiry. The District of Columbia
Court of Appeals, sitting en banc, recently clarified the
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District’s respondeat superior law in Trump v. Carroll, 292
A.3d 220 (D.C. 2023).
As the court there explained, the District “generally
adheres to the analytical framework of the scope of
employment inquiry set forth in the Restatement (Second) of
Agency.” Id. at 228. Under that framework, an employee’s
conduct falls within the scope of employment if “(a) it is of the
kind [the person] is employed to perform; (b) it occurs
substantially within the authorized time and space limits; [and]
(c) it is actuated, at least in part, by a purpose to serve the
[employer].” Id. at 228 (first alteration in original) (quoting
Restatement (Second) of Agency § 228 (1958)).
Plevnik grounds his challenge to the government’s
Westfall certification in the framework’s third prong.
According to Plevnik, the government did not demonstrate that
the federal defendants were actuated by a purpose to serve the
United States when taking the actions giving rise to his fraud
claim against them. We disagree.
The District of Columbia Court of Appeals explained that
the third prong of its respondeat superior analysis—whether an
action “is actuated, at least in part, by a purpose to serve the
employer”—itself consists of three elements. The first is the
“purpose” element, which requires that the employee have
been “actuated . . . by a purpose to serve the [employer].” Id.
233–34. The second is the “quantum” element, which provides
that “the employee need only have been actuated ‘at least in
part’ by that purpose.” Id. at 234. And the last is the “timing”
element, which assesses “the temporal scope of
circumstances . . . to discern the employee’s purpose in
acting.” Id. at 237.
First, the “purpose” element is satisfied here. Determining
“whether the employee was, in fact, motivated by a purpose to
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serve their employer” is an inquiry into the employee’s
“subjective state of mind,” guided by “inferences about
whether the employee was in fact responding to an
employment-related circumstance.” Id. at 234–35. Here, the
conduct at issue involved federal employees carrying out duties
directly within the parameters of their employment. Keilty
interviewed Plevnik to facilitate the government’s obligation to
help recover assets from abroad. Billington fulfilled his role as
security attaché by detaining and questioning an individual
who raised suspicions of fraudulent activity. And Brown
carried out his role as a senior officer in charge of diplomatic
security by supervising Billington.
Plevnik counters that fraud necessarily falls outside of
employment activities. But courts must “look beyond alleged
intentional torts themselves” and “focus[] on the underlying
dispute or controversy” to determine whether conduct occurred
in the scope of employment. Ballenger, 444 F.3d at 664
(internal quotation marks and citation omitted); see also
Carroll, 292 A.3d at 235 (“[W]ere the inquiry limited to the
tortious conduct itself without the underlying context, the
characteristics of that conduct might misleadingly appear to be
personal in nature.”). Here, the underlying conduct involved
federal employees acting squarely in their official capacities.
Second, for purposes of the “quantum” element, those
employees were motivated “at least in part” to serve their
employer. Carroll, 292 A.3d at 235. That could be so even if
they were “concurrently motivated by a personal purpose” or if
“such a personal purpose” was their “predominant purpose.”
Id. at 235–36. There is no dispute that each employee’s
pertinent conduct fell within his normal responsibilities:
recovering U.S. financial assets, facilitating entry into a U.S.
embassy, and detaining persons suspected of presenting
fraudulent government documents. Plevnik stresses that,
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according to his allegations, the employees acted to enrich
themselves. But the question is whether they had at least “some
discernable purpose” to serve the United States. Id. at 235.
And the focus again is on the underlying context of the conduct,
not just on its allegedly tortious nature. See id.
Third, and relatedly, an employee “need not possess the
requisite purpose to serve the employer at the precise moment
of time in which the tort was committed.” Id. at 237.
“Examining only the split second moment of the actual
commission of the tort—absent some context—could unfairly
limit employer liability.” Id. at 238. Here, the employees were
acting “within working hours and at an authorized place.” Id.
at 238 n.21 (internal quotation marks and citation omitted).
Keilty was one of many Department of Justice attorneys called
in to interview Plevnik to vet his proposal to extract billions of
dollars located in foreign countries. And Billington and Brown
facilitated Plevnik’s entry to (and eventual detention at) a U.S.
embassy in connection with Plevnik’s repatriation efforts.
Regardless of any personal motivations that allegedly drove the
federal defendants to engage in tortious activity, “there was an
employer-related impetus to the employee[s’] conduct at one
time” given the nature of the duties performed. Id. at 238.
Plevnik last argues that the district court at least should
have allowed him jurisdictional discovery to probe the federal
defendants’ motives before accepting the Westfall
certification. But “there is no right to even limited discovery
in a Westfall Act case unless and until a plaintiff alleges
sufficient facts to rebut the Government’s certification.”
Wuterich v. Murtha, 562 F.3d 375, 382 (D.C. Cir. 2009). That
bar for discovery is high, in part, because the “Westfall Act
confers absolute, not merely qualified, immunity upon federal
employees acting within the scope of their official duties.” Id.
And the immunity “entitles government officials not merely to
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avoid standing trial, but also to avoid the burdens of such
pretrial matters as discovery.” Id. (internal quotation marks
and citation omitted). Because Plevnik failed to allege
sufficient facts to overcome the government’s Westfall
certification, he has no entitlement to jurisdictional discovery.
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.