Wuterich v. Murtha

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2008 Decided April 14, 2009

No. 07-5379

FRANK D. WUTERICH,

APPELLEE

v.

JOHN MURTHA, CONGRESSMAN, AND

UNITED STATES OF AMERICA,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 06cv01366)

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.

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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 (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 (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. Because the District Court’s denial of

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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

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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

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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

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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 November 16, 2007,

Congressman Murtha and the United States appealed the District

Court’s denial of the Attorney General’s certification and

several days later moved to stay the order pending appeal. On

December 17, 2007, the District Court granted the stay,

recognizing that once Congressman Murtha “submits to the

deposition ordered by this Court, his appeal of that order may

become moot.” Id. at 3-4, J.A. 304-05.

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II. ANALYSIS

A. The Westfall Act Framework

The Federal Employees Liability Reform and Tort

Compensation Act of 1988, commonly known as 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, 549 U.S. at 229 (citing

28 U.S.C. § 2679(b)(1)). The Westfall Act’s “core purpose,” as

the Supreme Court has explained, “is to relieve covered

employees from the cost and effort of defending the lawsuit, and

to place those burdens on the Government’s shoulders.” Id. at

252. In pertinent part, the Westfall Act provides:

Upon certification by the Attorney General 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, any civil action or proceeding

commenced upon such claim in a United States district

court shall be deemed an action against the United States

under the provisions of this title and all references thereto,

and the United States shall be substituted as the party

defendant.

28 U.S.C. § 2679(d)(1). Thus, when a federal employee is

named in a tort suit, the Attorney General or his designee may

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.” Id.; see also 28 C.F.R. § 15.4. Upon the Attorney

General’s certification, the federal employee is dismissed from

the case and the United States is substituted as the defendant in

place of the employee. 28 U.S.C. § 2679(d)(1). Thereafter, the

suit is governed by the Federal Tort Claims Act (“FTCA”) and

is subject to all of the FTCA’s exceptions for actions in which

the Government has not waived sovereign immunity. Osborn,

549 U.S. at 230. When one of these exceptions applies, the

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Attorney General’s certification converts the tort suit into a

FTCA action over which the federal court lacks subject matter

jurisdiction and has the effect of altogether barring plaintiff’s

case.

A plaintiff may contest the Attorney General’s scope-of-

employment certification before a district court. Gutierrez de

Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (holding that

scope-of-employment certification is subject to judicial review).

Once a plaintiff advances this argument, the certification

“constitute[s] prima facie evidence that the employee was acting

within the scope of his employment.” Council on Am. Islamic

Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (per

curiam). To rebut the certification and obtain discovery, a

plaintiff must “alleg[e] sufficient facts that, taken as true, would

establish that the defendant[’s] actions exceeded the scope of

[his] employment.” Stokes, 327 F.3d at 1215. If a plaintiff

meets this pleading burden, he may, if necessary, attain “limited

discovery” to resolve any factual disputes over jurisdiction. Id.

at 1214, 1216.

This court has made it clear that “[n]ot every complaint will

warrant further inquiry into the scope-of-employment issue.” Id.

at 1216. Consequently, where a plaintiff fails to allege sufficient

facts to rebut the certification, the United States must be

substituted as the defendant because the federal employee is

absolutely immune from suit. The parties agree that if the

certification is not successfully rebutted in this case, Wuterich’s

action must be dismissed because his claims fall within the

FTCA’s exception for claims “arising out of . . . libel [or]

slander.” 28 U.S.C. § 2680(h). See Appellee’s Br. at 23 n.8

(noting that upon substitution “[t]he case would then proceed

under the FTCA, which confers immunity to the Government for

claims of libel and slander”); Appellants’ Br. at 10 (same);

Mem. of Law in Support of Pl.’s Opp’n to Mot. to Substitute

Def. and Dismiss for Lack of Subject Matter Jurisdiction at 10

9

(June 8, 2007) (“Wuterich agrees that if the United States is

properly substituted as the defendant in place of Mr. Murtha, his

lawsuit stops there.”), J.A. 149.

B. The Jurisdiction of This Court

Wuterich contends that we lack jurisdiction over this

appeal, because the District Court’s denial of certification

pending discovery is not a “final decision” under 28

U.S.C. § 1291. We disagree.

In this case, appellate jurisdiction to review the District

Court’s denial of certification pending discovery arises pursuant

to the collateral order doctrine of Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546-47 (1949). Under the collateral

order doctrine, an interlocutory order qualifies as “final” under

§ 1291 if it “[1] conclusively determine[s] the disputed question,

[2] resolve[s] an important issue completely separate from the

merits of the action, and [3] [is] effectively unreviewable on

appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,

349 (2006) (bracketed numbers in original) (quoting Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

144 (1993)).

Application of the collateral order doctrine to the District

Court’s denial of certification is controlled by the Supreme

Court’s decision in Osborn v. Haley, 549 U.S. 225 (2007). In

Osborn, the Court held that the denial of a Westfall Act

certification by a district court, like the denials of various other

immunity defenses, is an immediately appealable collateral

order. 549 U.S. at 238; see also Puerto Rico Aqueduct & Sewer

Auth., 506 U.S. at 141 (denial of claim of Eleventh Amendment

immunity immediately appealable); Mitchell v. Forsyth, 472

U.S. 511, 530 (1985) (same for qualified immunity); Nixon v.

Fitzgerald, 457 U.S. 731, 742-43 (1982) (same for absolute

presidential immunity); Kilburn v. Socialist People’s Libyan

Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004) (same

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for foreign sovereign immunity); United States v. Rostenkowski,

59 F.3d 1291, 1297 (D.C. Cir. 1995) (same for Speech or Debate

Clause immunity). The Osborn Court explained that the denial

of certification qualified for collateral order review because it

effectively denied [the defendant] the protection afforded

by the Westfall Act, a measure designed to immunize

covered federal employees not simply from liability, but

from suit[;] . . . conclusively decided a contested issue[;]

the issue decided is important and separate from the merits

of the action[;] and the District Court’s disposition would

be effectively unreviewable later in the litigation.

Osborn, 549 U.S. at 238 (citing Cohen, 337 U.S. at 546). In

other words, by erroneously permitting the plaintiff to proceed

against an absolutely immune official, the district court’s order

“subjects the employee to the burden of defending a suit, a

burden from which the Westfall Act spares him.” Id. at 238-39

(citation, brackets, and ellipsis omitted).

The District Court’s order denying certification pending

discovery is not materially distinguishable from the order at

issue in Osborn. First, by authorizing discovery notwithstanding

Congressman Murtha’s claim that he was acting within the

scope of his employment, the order conclusively determined that

the Congressman was not entitled to invoke the protections of

the Westfall Act to avoid discovery. In addition, by “effectively

den[ying]” Congressman Murtha the absolute immunity from

suit guaranteed by the Westfall Act, the order resolved an

important issue separate from the merits of Wuterich’s

defamation case. Id. at 238. Finally, if Wuterich is erroneously

permitted to depose Congressman Murtha and conduct

document discovery, the District Court’s order will be

effectively unreviewable on appeal from a final judgment. See

id. at 252 (noting that the “core purpose” of the Westfall Act “is

to relieve covered employees from the cost and effort of

defending the lawsuit, and to place those burdens on the

11

Government’s shoulders”). As the Court has recognized, a

rejection of even a qualified immunity plea is immediately

appealable because that defense entitles government officials

“not merely to avoid standing trial, but also to avoid the burdens

of such pretrial matters as discovery . . . , as [i]nquiries of this

kind can be particularly disruptive of effective government.”

Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (alterations in

original) (internal quotation marks and citations omitted). This

principle has even stronger force in the present case, since the

Westfall Act confers absolute, not merely qualified, immunity

upon federal employees acting within the scope of their official

duties.

Moreover, the fact that the District Court denied the

Government’s certification pending discovery in no way limits

Congressman Murtha’s right to seek appellate review. As noted

above, 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. See Stokes, 327 F.3d at

1215-16; see also Rasul v. Myers, 512 F.3d 644, 662 (D.C. Cir.

2008), vacated and remanded on other grounds, 129 S. Ct. 763

(2008) (“[D]iscovery is not warranted if the plaintiff did not

allege any facts in his complaint or in any subsequent filing . . .

that, if true, would demonstrate that [the defendant] had been

acting outside the scope of his employment.”) (first alteration

added) (internal quotation marks omitted) (citing Stokes, 327

F.3d at 1216). As explained below in Part C, Wuterich clearly

has failed to meet even this minimal burden. Because the

District Court’s decision to deny certification was premised on

an erroneous ruling that Wuterich was entitled to discovery, the

decision effectively denied Congressman Murtha the absolute

immunity to which he was entitled. Therefore, under Osborn,

we have jurisdiction to hear this appeal.

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C. Plaintiff Has Failed To Allege Sufficient Facts That,

Taken As True, Would Establish That Congressman

Murtha Was Acting Outside the Scope of His Employment

When He Made the Allegedly Defamatory Statements

The Government argues that the District Court erred in

concluding that Wuterich alleged sufficient facts to establish

that Congressman Murtha was acting outside the scope of his

employment at the time he made comments about the deaths in

Haditha. The District Court’s legal conclusions regarding the

sufficiency of Wuterich’s allegations on the scope-of-

employment issue are subject to de novo review. Ballenger, 444

F.3d at 664. Moreover, in evaluating Wuterich’s claim, the

court must accept Wuterich’s factual allegations as true and

construe the complaint liberally in his favor in accordance with

the standard of Federal Rule of Civil Procedure 8(a). Stokes,

327 F.3d at 1211, 1215; see also FED. R. CIV. P. 8(a)(2).

To determine whether an employee was acting within the

scope of his employment under the Westfall Act, courts apply

the respondeat superior law of the state in which the alleged tort

occurred. Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008).

District of Columbia law, which the parties agree applies in this

case, defines the scope of employment in accordance with the

RESTATEMENT (SECOND) OF AGENCY (1958) (“RESTATEMENT”).

Ballenger, 444 F.3d at 663 (citing Moseley v. Second New St.

Paul Baptist Church, 534 A.2d 346, 348 n.4 (D.C. 1987)). The

Restatement provides:

Conduct of a servant is within the scope of employment if,

but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time

and space limits;

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(c) it is actuated, at least in part, by a purpose to serve

the master, and

(d) if force is intentionally used by the servant against

another, the use of force is not unexpectable by the

master.

RESTATEMENT § 228(1). “[T]he test for scope of employment

is an objective one, based on all the facts and circumstances.”

Ballenger, 444 F.3d at 663 (alteration in original) (quoting

Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986)).

The parties also agree that Pennsylvania law might apply to

statements made by Congressman Murtha when he was at his

district office in Pennsylvania. But they agree that the scope-of-

employment inquiry is substantially the same in Pennsylvania

and the District of Columbia, because Pennsylvania law also

incorporates the RESTATEMENT standard. See, e.g., Shuman

Estate v. Weber, 419 A.2d 169, 173 (Pa. Super. Ct. 1980)

(outlining scope-of-employment inquiry and citing

RESTATEMENT § 228); see also Appellants’ Br. at 12 n.2;

Appellee’s Br. at 43 n.26.

Wuterich argues that Congressman Murtha’s statements to

the media fell outside the scope of his employment because they

were neither conduct “of the kind he is employed to perform,”

RESTATEMENT § 228(1)(a), nor were they “actuated, at least in

part, by a purpose to serve the master,” id. § 228(1)(c).

Wuterich alleged in his complaint 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.” Compl. ¶ 23. Wuterich

additionally maintained at the motion hearing before the District

Court that Congressman Murtha’s comments fell outside the

scope of his official duties because they were intended to

embarrass Defense Secretary Rumsfeld. Taken together and

generously construed under the liberal pleading standard of Rule

14

8(a), Wuterich has failed to allege facts that, taken as true,

establish that Congressman Murtha’s actions exceeded the scope

of his employment.

The analysis of Wuterich’s allegations is controlled by this

court’s decision in Council on American Islamic Relations v.

Ballenger, 444 F.3d 659 (D.C. Cir. 2006). In that case, the

Council on American-Islamic Relations sued Congressman Cass

Ballenger for defamation and slander after Congressman

Ballenger remarked that the organization was the “fund-raising

arm for Hezbollah” during a conversation with a reporter about

his separation from his wife. Id. at 662. The Government

certified that Congressman Ballenger was acting within the

scope of his employment. The parties conducted limited

discovery which was not an issue on appeal. See id. at 663, 665;

Council on Am. Islamic Relations, Inc. v. Ballenger, 366 F.

Supp. 2d 28, 30 (D.D.C. 2005). The District Court upheld the

Government’s Westfall Act certification and dismissed the case.

Ballenger, 444 F.3d at 663-64. In affirming the District Court,

this court explained that the proper test under RESTATEMENT

§ 228(1)(a) is whether the “[underlying conduct] – not the

allegedly defamatory sentence – was the kind of conduct

Ballenger was employed to perform.” Id. at 664.

Applying this test, the court in Ballenger held that the

Congressman’s conduct was of the kind he was employed to

perform, because “[s]peaking to the press during regular work

hours in response to a reporter’s inquiry falls within the scope of

a congressman’s ‘authorized duties.’” Id. Further, the court was

quite clear in stating that, even though the allegedly defamatory

statement was made in the course of a conversation about

Congressman Ballenger’s marital difficulties, his “conduct was

motivated – at least in part – by a legitimate desire to discharge

his duty as a congressman” within the meaning of

RESTATEMENT § 228(1)(c). Id. at 665. This was so, the court

explained, because a congressman’s “ability to do his job as a

15

legislator effectively is tied, as in this case, to the Member’s

relationship with the public and in particular his constituents and

colleagues in the Congress.” Id. Thus, the court found that

there was a “clear nexus between the congressman answering a

reporter’s question about the congressman’s personal life and

the congressman’s ability to carry out his representative

responsibilities effectively.” Id. at 665-66.

Applying the teachings of Ballenger to this case, it is clear

that Wuterich has not alleged any facts that even remotely

suggest that Congressman Murtha was acting outside the scope

of his employment when he spoke about the Haditha incident.

As in Ballenger, the underlying conduct – interviews with the

media about the pressures on American troops in the ongoing

Iraq war – is unquestionably of the kind that Congressman

Murtha was employed to perform as a Member of Congress.

This is especially true in the case of Congressman Murtha, who

was the Ranking Member of the Appropriations Committee’s

Subcommittee on Defense and had introduced legislation to

withdraw American troops from Iraq. See H.R.J. Res. 73, 109th

Cong. (2005) (“The deployment of United States forces in Iraq,

by direction of Congress, is hereby terminated and the forces

involved are to be redeployed at the earliest practicable date.”).

Indeed, where comments made in the course of a conversation

on as private a matter as marital status are within the scope of a

congressman’s official duties, it is hard to fathom how

Congressman Murtha’s discussion of grave public policy

concerns relating to the war in Iraq could ever fall outside the

scope of his employment. See Williams v. United States, 71

F.3d 502, 507 (5th Cir. 1995) (holding that a congressman’s

allegedly defamatory remarks during an interview about an

appropriations bill were within the scope of his employment and

noting that “[b]esides participating in debates and voting on the

Congressional floor, a primary obligation of a Member of

Congress in a representative democracy is to serve and respond

to his or her constituents”).

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In concluding that discovery nonetheless was necessary in

this case, the trial judge stated that she was “unable at this stage

to know exactly where the lines should be drawn” and “would

be personally much more comfortable if [she] knew a few more

of the facts” before ruling on the certification. Mot. Hr’g Tr. 33,

J.A. 340. When subsequently pressed by the Government that

she needed to make a finding on the sufficiency of Wuterich’s

allegations before permitting discovery, the trial judge first

stated that Wuterich’s “complaint” was insufficient to support a

claim that the Congressman was acting outside the scope of his

employment. Id. However, the trial judge then pointed to

Wuterich’s post-complaint allegation that Congressman Murtha

was “harping on Haditha as a way to embarrass the Secretary of

Defense,” id. at 34, J.A. 341, as if to suggest that, if true, this

allegation might be enough to show that the Congressman was

acting outside the scope of his employment. But Wuterich’s

claim that Congressman Murtha desired to “embarrass” Defense

Secretary Rumsfeld, even if true, surely would not take his

actions outside the scope of his employment.

As this court emphasized in Ballenger, “The Restatement’s

text reveals that even a partial desire to serve the master is

sufficient.” 444 F.3d at 665 (citing RESTATEMENT § 228(1)(c)).

It then explained that a congressman’s “ability to do his job as

a legislator effectively is tied, as in this case, to the Member’s

relationship with the public and in particular his constituents and

colleagues in the Congress.” Id. Attacking the credibility of

Defense Secretary Rumsfeld, the man who was the public face

of the war in Iraq, was likewise part and parcel of Congressman

Murtha’s job as a legislator charged with overseeing military

affairs and of his efforts to serve his constituents by advancing

legislation to bring home American troops stationed in Iraq.

Also instructive on this point is the court’s recent Westfall

Act decision in Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008).

In Wilson, the court upheld the District Court’s ruling that

17

defendant Bush Administration officials had acted within the

scope of their employment when they disclosed to the media the

previously covert agent status of Valerie Plame Wilson, whose

husband Joseph C. Wilson IV had been an outspoken critic of

the administration’s approach to intelligence issues. Id. at 703,

712. Rejecting plaintiffs’ claim that the defendants exceeded the

scope of their employment when they “spoke to the press in

order to diffuse Joseph Wilson’s criticism of the Executive’s

handling of pre-war intelligence,” the court explained that “[o]f

course, the defendants may discredit public critics of the

Executive Branch.” Id. at 712 (alteration in original) (citations

omitted). Congressman Murtha’s alleged attempts to discredit

Defense Secretary Rumsfeld’s management of the war in Iraq,

no less than the comments of the Bush Administration officials

in the Wilson case, were directly tied to his congressional

political agenda and thus cannot support a claim that the

Congressman acted outside the scope of his employment.

His complaint lacking, Wuterich’s discovery demands

appear to be nothing more than a fishing expedition for facts that

might give rise to a viable scope-of-employment claim.

Wuterich admitted as much in his brief before this court and at

oral argument, when he argued that discovery was necessary to

allow him to ascertain each and every person who Congressman

Murtha spoke to about the Haditha incident over a several week

period: “Was [Congressman Murtha] talking to fundraisers?

Was he talking to staff? . . . Was he talking to neighbors? Who

was he talking to over this course of time?” Oral Arg. Tr. 20

(Nov. 18, 2008); see also Appellee’s Br. at 34 n.19 (“The facts

that would be adduced through discovery could significantly

impact a future scope of employment determination, i.e., to

whom Mr. Murtha spoke, where he spoke and his motive for

speaking.”) (emphases added). Discovery of this sort – by

intuition or pursuant to a witch hunt – simply has no place in a

Westfall Act absolute immunity case. As our Westfall Act cases

make abundantly clear, “Not every complaint will warrant

18

further inquiry into the scope-of-employment issue.” Stokes,

327 F.3d at 1216. And there is no right to even “limited

discovery” unless a plaintiff has made allegations sufficient to

rebut the Government’s certification. Id. at 1214, 1216; see also

Wilson, 535 F.3d at 712 n.2 (affirming District Court’s ruling

that discovery “is not warranted to determine precise times and

locations of the defendants’ conversations with the press”).

Allowing discovery in the absence of such allegations – as the

District Court did in this case – turns this standard on its head.

Faced with similarly broad discovery requests that

threatened to impinge upon an official’s immunity, this court has

even gone so far as to grant mandamus relief, a remedy that is

reserved for “only exceptional circumstances amounting to a

judicial ‘usurpation of power.’” Cheney v. U.S. Dist. Court, 542

U.S. 367, 380 (2004) (quoting Will v. United States, 389 U.S.

90, 95 (1967)). For example, in In re Papandreou, 139 F.3d 247

(D.C. Cir. 1998), this court issued a writ of mandamus and

vacated the District Court’s discovery order requiring high-

ranking Greek government officials to undergo depositions

aimed at evaluating their foreign sovereign immunity defense.

Id. at 249-50, 256. While emphasizing that mandamus is a

“drastic,” remedy, id. at 250 (citation omitted), this court

nonetheless found that it was warranted “[b]ecause sovereign

immunity is an immunity from suit, [and] a district court

authorizing discovery to determine whether immunity bars

jurisdiction must proceed with circumspection, lest the

evaluation of the immunity itself encroach unduly on the

benefits the immunity was to ensure,” id. at 253 (internal

citation omitted). Explaining that “oral deposition of cabinet-

level officials is quite unusual,” this court concluded that

“absent some showing of need for oral testimony from the

[officials], the district court erred in authorizing their

depositions.” Id. at 253, 254.

19

Another example is seen in the en banc court’s decision in

In re Cheney, 406 F.3d 723 (D.C. Cir. 2005). In re Cheney

involved suits filed by two nonprofit organizations against the

Vice President and other government officials, alleging that the

National Energy Policy Development Group was subject to the

Federal Advisory Committee Act’s (“FACA”) disclosure

requirements. Id. at 725-27. The District Court had largely

rejected the Government’s motion to dismiss pending discovery

that this court described as “overly broad” and “unbounded in

scope.” Id. at 727 (quoting Cheney, 542 U.S. at 386, 388). The

en banc court granted a writ of mandamus and ordered the case

dismissed, because the plaintiffs had failed to state a claim for

relief under FACA. Id. at 728-31. Importantly, In re Cheney

unequivocally rejected the plaintiffs’ pleas for discovery in order

to find facts that would lend credence to their complaint.

In sum, because Wuterich has failed to “alleg[e] sufficient

facts that, taken as true, would establish that [Congressman

Murtha’s] actions exceeded the scope of [his] employment,”

Stokes, 327 F.3d at 1215, we vacate the District Court’s order.

III. CONCLUSION

For the foregoing reasons, we hereby 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 FTCA excepts tort claims

“arising out of . . . libel [or] slander,” 28 U.S.C. § 2680(h), from

the Government’s sovereign immunity waiver, Wuterich’s case

is barred by sovereign immunity. Accordingly, the District

Court will be required to dismiss the case for lack of subject

matter jurisdiction.