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
 3

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
 4

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
 5

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
 6

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.
 7

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
 8

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
 10

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.
 12

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;
 13

(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”).
 16

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
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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.
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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.