United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2007 Decided April 15, 2008
No. 06-5282
JENNIFER K. HARBURY ON HER OWN BEHALF AND AS
ADMINISTRATRIX OF THE ESTATE OF EFRAIN
BAMACA-VELASQUEZ,
APPELLANT
v.
MICHAEL V. HAYDEN, DIRECTOR,
CENTRAL INTELLIGENCE AGENCY (CIA), ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00438)
Jennifer K. Harbury, appearing pro se, argued the cause
and filed the briefs for appellant. Beth Stephens and Mara E.
Verheyden-Hilliard entered appearances.
Tyler Giannini was on the brief for amicus curiae United
States Representative Barney Frank in support of appellant.
Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Jeffrey A.
2
Taylor, U.S. Attorney, C. Frederick Beckner III, Deputy
Assistant Attorney General, and Barbara L. Herwig,
Attorney. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.
Before: RANDOLPH and KAVANAUGH, Circuit Judges,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge RANDOLPH joins, and
with whom Senior Circuit Judge WILLIAMS joins except as to
the second sentence of footnote five.
KAVANAUGH, Circuit Judge: In the early 1990s,
members of the Guatemalan army killed rebel fighter Efrain
Bamaca-Velasquez during Guatemala’s civil war. Bamaca’s
widow, Jennifer Harbury, sued various U.S. Government
officials, claiming they were legally responsible for the
physical abuse and death of her husband. The District Court
long ago dismissed most of Harbury’s claims. Harbury now
appeals the District Court’s order dismissing her common-law
tort claims. We affirm for either of two alternative
jurisdictional reasons: (1) Under this Court’s precedents, the
case presents a nonjusticiable political question; or (2) the
Federal Tort Claims Act applies to Harbury’s claims, and the
FTCA bars suits based on injuries that occurred in a foreign
country.
I
Jennifer Harbury is a U.S. citizen and the widow of
Efrain Bamaca-Velasquez, who was a citizen of Guatemala
and a commander of rebel forces in that country’s 35-year
civil war. According to Harbury, in the 1990s the U.S.
Central Intelligence Agency hired and trained Guatemalan
3
army officers as informants so that the CIA could gather
information about the rebel forces. Harbury alleges that the
CIA obtained information from the Guatemalan army officers
and shared it with the White House and the State Department
during the Administrations of President George H.W. Bush
and President Clinton. Harbury claims, moreover, that “it was
understood . . . and/or intended by the CIA that this
information would be obtained through torture and similar
means.” Second Amended Complaint at 11, Harbury v.
Hayden, 444 F. Supp. 2d 19 (D.D.C. 2006) (Civ. No. 96-438).
Harbury specifically contends that Bamaca was captured
in March 1992 by Guatemalan army officers affiliated with
the CIA. The CIA allegedly reported to the White House and
U.S. Government agencies that its Guatemalan counterparts
had captured Bamaca “and that they would probably fabricate
his combat death in order to be able to maximize their ability
to extract information” from him. Id. at 9. At the same time
that the Guatemalan army publicly maintained that Bamaca
had committed suicide, its officers allegedly “detained,
psychologically abused and physically tortured” Bamaca in an
attempt to get information from him. Id. According to
Harbury, the Guatemalan officers then killed Bamaca.
Harbury initially sued and sought damages from many
U.S. Government officials in their personal capacities – (i) at
the CIA, Directors John M. Deutch, R. James Woolsey, and
Robert M. Gates; Deputy Directors David Cohen, John J.
Devine, Thomas A. Twetten, John C. Gannon, Douglas J.
MacEachin, and John L. Helgerson; Latin American Division
Chief Terry R. Ward; National Intelligence Officer Brian
Latelle; National Intelligence Council Chiefs Richard N.
Cooper, Christine N. Williams, Joseph S. Nye, and Fritz W.
Esmarth; Guatemala Station Chiefs Dan Donahue and
Frederick A. Brugger; and “unnamed employees” of the CIA;
4
(ii) at the State Department, Secretary of State Warren
Christopher; U.S. Ambassador to Guatemala Marilyn
MacAfee; Assistant Secretary Alexander Watson; Deputy
Assistant Secretary Anne Patterson; Guatemala Desk Officer
Peg Willingham; and “unnamed employees” of the State
Department; and (iii) at the National Security Council,
National Security Advisor Anthony Lake; NSC staff member
Richard E. Feinberg; and “unnamed employees” of the
National Security Council. See id. at 1-2, 5-8.
The District Court previously dismissed most of
Harbury’s claims. See Harbury v. Hayden, 444 F. Supp. 2d
19, 24 (D.D.C. 2006) (citing cases and orders); see also
Christopher v. Harbury, 536 U.S. 403, 405 (2002).
Harbury’s only remaining claims are common-law tort
claims against the individual CIA Defendants. Harbury
alleges that the individual CIA Defendants conspired to cause
Bamaca’s imprisonment, torture, and execution; negligently
supervised their Guatemalan counterparts, resulting in
Bamaca’s injury and death; and caused emotional distress to
Harbury as a result of Bamaca’s injury and death. The
District Court dismissed these claims under Federal Rule of
Civil Procedure 12(b)(1). Harbury now appeals; our review is
de novo.
II
To explain the District Court’s decision and Harbury’s
appeal, we begin with a brief overview of the Federal Tort
Claims Act and the Westfall Act.
The Federal Tort Claims Act is a limited waiver of the
Government’s sovereign immunity. Under the FTCA,
plaintiffs may sue the United States in federal court for state-
law torts committed by government employees within the
5
scope of their employment. 28 U.S.C. §§ 1346(b), 2671-80.
But the FTCA does not create a statutory cause of action
against individual government employees.
If a plaintiff files a state-law tort suit against an
individual government employee, a companion statute – the
Westfall Act – provides that the Attorney General may certify
that the employee was acting within the scope of employment
“at the time of the incident out of which the claim arose.” 28
U.S.C. § 2679(d)(1). Upon the Attorney General’s
certification, the tort suit automatically converts to an FTCA
“action against the United States” in federal court; the
Government becomes the sole party defendant; and the
FTCA’s requirements, exceptions, and defenses apply to the
suit. Id.1
In many cases, the Attorney General’s certification
begins and ends the scope-of-employment analysis. The
Government takes over as the sole party defendant, and the
suit proceeds under the FTCA. From the plaintiff’s
perspective, this can produce a net positive: Although the
plaintiff must now litigate against the Federal Government,
the original defendant – a potentially judgment-proof federal
employee – has been replaced by the seemingly bottomless
U.S. Treasury.
1
If the Attorney General does not certify that the defendant
employee was acting within the scope of employment, the
defendant may petition the court to make such a finding. If the
court so finds, then the case becomes a federal-court FTCA case
against the Government, just as if the Attorney General had filed a
certification. 28 U.S.C. § 2679(d)(3)-(4). If the court finds that the
government employee was not acting within the scope of
employment, then the state-law tort suit may proceed against the
government employee in his or her personal capacity.
6
Plaintiffs do not always view certification so charitably,
however. As mentioned earlier, the FTCA is a limited waiver
of sovereign immunity. The Act contains several exceptions
– for example, it does not apply to claims for lost mail, suits
in admirality, claims arising out of the military’s combatant
activities during wartime, claims based on discretionary
functions, or claims that arise in foreign countries, among
other exceptions. See 28 U.S.C. § 2680. When one of the
FTCA’s exceptions applies – that is, when the Government
has not waived its sovereign immunity – the Attorney
General’s scope-of-employment certification has the effect of
converting the state-law tort suit into an FTCA case over
which the federal courts lack subject-matter jurisdiction. In
other words, the combination of the scope-of-employment
determination and the FTCA’s exceptions may absolutely bar
a plaintiff’s case. See United States v. Smith, 499 U.S. 160,
166 (1991).
In such cases, to try to preserve their lawsuits, plaintiffs
often contest the Attorney General’s scope-of-employment
certification. Plaintiffs typically argue that the individual
government employee defendants did not act within the scope
of their employment and that the suits should therefore
continue as state-law tort suits against the government
officials in their personal capacities. Once a plaintiff
advances this argument, courts consider the scope-of-
employment issue essentially de novo based on the state law
of the place where the employment relationship exists. If the
court agrees with the Attorney General, the suit becomes an
action against the United States that is governed by the
FTCA. But if the court disagrees with the Attorney General’s
determination, the state-law tort suit may proceed against the
defendant government employee in his or her personal
capacity. See Gutierrez de Martinez v. Lamagno, 515 U.S.
7
417, 423-24, 434 (1995); Council on Am. Islamic Relations v.
Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006).
Harbury’s case followed this procedural course. Among
other claims, Harbury brought common-law tort claims
against the individual CIA Defendants. In March 2000,
Attorney General Reno certified that the individual CIA
Defendants had acted within the scope of their employment.
The Attorney General’s certification removed the individual
CIA Defendants from the tort action, substituted the United
States as the sole party defendant, and rendered all of
Harbury’s tort claims subject to the FTCA and its exceptions,
including the foreign-country exception.
Harbury then challenged the Attorney General’s
certification, arguing based on D.C. law that the individual
CIA Defendants did not act within the scope of their
employment. The District Court disagreed: It ruled that the
FTCA applied to all of Harbury’s tort claims and held that it
lacked subject-matter jurisdiction because the claims fell
within the FTCA’s exception for claims “arising in a foreign
country.” 28 U.S.C. § 2680(k); see also Sosa v. Alvarez-
Machain, 542 U.S. 692, 712 (2004) (foreign-country
exception “bars all claims based on any injury suffered in a
foreign country, regardless of where the tortious act or
omission occurred”).
On appeal, Harbury argues that the individual CIA
Defendants did not act within the scope of their employment
under D.C. law because “acts of torture can never fall within
the scope of employment.” Harbury Br. at 14. According to
Harbury, Attorney General Reno and the District Court erred
in certifying the acts as within the individual CIA Defendants’
scope of employment, the FTCA therefore does not apply,
and Harbury can maintain tort claims against the individual
8
CIA Defendants in their personal capacities. To the extent the
scope-of-employment certification was proper and Harbury’s
claims are converted into FTCA claims against the United
States, Harbury separately argues that at least some of the
claimed injuries, such as her emotional distress, occurred in
the United States, and that the FTCA’s foreign-country
exception therefore does not bar those claims against the
Government.2
III
Pointing to recent cases from this Circuit, the
Government contends that all of Harbury’s claims pose
“political questions” that the federal courts may not consider.
The political question doctrine is an important tenet of
separation of powers and judicial restraint. But the doctrine is
notorious for its imprecision, and the Supreme Court has
relied on it only occasionally. As Judge Bork explained a
generation ago, “That the contours of the doctrine are murky
and unsettled is shown by the lack of consensus about its
meaning among the members of the Supreme Court and
among scholars.” Tel-Oren v. Libyan Arab Republic, 726
F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork, J., concurring)
(citations omitted). Judge Bork’s observation remains true
today.
2
Unlike under the FTCA and the Westfall Act, no scope-of-
employment certification process is available for Bivens claims
against individual federal officials. But aliens such as Bamaca who
were injured outside the United States typically cannot bring such
constitutional claims. See United States v. Verdugo-Urquidez, 494
U.S. 259, 274-75 (1990). This Court therefore previously
dismissed Bivens claims that Harbury brought on behalf of her late
husband. See Harbury v. Deutch, 233 F.3d 596, 602-04 (D.C. Cir.
2000).
9
The Supreme Court has held that the political question
doctrine bars judicial resolution of certain issues textually and
exclusively committed by the Constitution to one or both of
the other branches of the Federal Government. Baker v. Carr,
369 U.S. 186, 217 (1962); see also Nixon v. United States,
506 U.S. 224 (1993); Goldwater v. Carter, 444 U.S. 996,
1002 (1979) (opinion of Rehnquist, J., for four Justices);
Gilligan v. Morgan, 413 U.S. 1 (1973). The Court in Baker
also held that the political question doctrine applies when
there is a “lack of judicially discoverable and manageable
standards for resolving” a case; in practice, however, this is
often equivalent to a merits determination. 369 U.S. at 217;
see also Vieth v. Jubelirer, 541 U.S. 267, 277-291 (2004)
(plurality opinion).
Although those first two factors – textual commitment
and lack of judicially manageable standards – are the most
important, the Court also considers others: “the impossibility
of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion”; “the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government”; “an unusual need for unquestioning adherence
to a political decision already made”; and “the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.” Baker, 369 U.S. at 217. As
the Baker Court recognized in discussing those political
question factors, judicial restraint in the area of foreign affairs
is often appropriate because such cases “frequently turn on
standards that defy judicial application, or involve the
exercise of a discretion demonstrably committed to the
executive or legislature.” Id. at 211. The Court cautioned,
however, that “it is error to suppose that every case or
controversy which touches foreign relations lies beyond
10
judicial cognizance.” Id. Instead, each case involves a
“discriminating analysis of the particular question posed.” Id.
Although the contours of the political question doctrine
may be uncertain, this Court has relied on the doctrine in three
recent cases that are indistinguishable from this case and
control our decision here.
In Schneider v. Kissinger, children of a deceased Chilean
general brought tort claims against former U.S. officials. 412
F.3d 190, 192 (D.C. Cir. 2005); see also Schneider v.
Kissinger, 310 F. Supp. 2d 251, 257 (D.D.C. 2004)
(describing claims). The plaintiffs alleged that, in 1970, then-
National Security Advisor Henry Kissinger and then-CIA
Director Richard Helms supported Chileans in Chile as they
kidnapped, tortured, and killed General René Schneider
during a military coup d’etat. 412 F.3d at 191-92. In
response to the plaintiffs’ charges against Kissinger and
Helms, the Attorney General certified that both men had acted
within the scope of their federal employment. Id. at 192.
This Court held that the case presented a nonjusticiable
political question. Id. at 198. The Court explained that the
suit challenged the merits of foreign policy decisions that the
Constitution assigns to the political branches. Id. at 195. The
Court also found a lack of judicially discoverable and
manageable standards regarding “the government’s use of
covert operations in conjunction with political turmoil in
another country.” Id. at 197. Citing Baker, the Court stated
that it could not entertain the lawsuit without expressing a
lack of respect for a coordinate branch of the Government.
Id. at 197-98.
This Court again applied the political question doctrine in
Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006).
In that case, the plaintiffs brought tort claims against former
11
National Security Advisor Kissinger. Id. at 1263. According
to the plaintiffs, after the U.S. Government and Kissinger
supported the 1973 coup d’etat in Chile that installed Augusto
Pinochet as President of the newly formed military junta, they
supported a “Chilean terror apparatus” that “brutally
repressed and attempted to eliminate individuals opposed to
Pinochet’s regime” – including the plaintiffs and their
relatives. Id. at 1261 (internal quotation marks and alterations
omitted). In response to the plaintiffs’ charges, the Attorney
General certified that Kissinger had acted within the scope of
his employment as a U.S. official. Id. at 1262.
As in Schneider, the Gonzalez-Vera Court held that the
plaintiffs’ claims posed a nonjusticiable political question.
The plaintiffs attempted to distinguish their case from
Schneider by arguing that they challenged “specific acts of
torture” that occurred after the coup d’etat rather than the
“Government’s policy decision to support Pinochet’s rise to
power.” Id. at 1263 (internal quotation marks omitted). But
this Court found that evaluating “the legal validity of those
measures would require us to delve into questions of policy
textually committed to a coordinate branch of government.”
Id. (internal quotation marks omitted). The Court also
rejected the plaintiffs’ attempt to characterize the defendants’
actions as “ultra vires,” noting that Kissinger had acted within
the authority delegated to him by the President. Id. at 1264.
The third of this Court’s cases that bears directly on the
political question analysis is Bancoult v. McNamara, 445 F.3d
427 (D.C. Cir. 2006). In that case, former residents of the
island of Diego Garcia sued several current and former
officials of the Departments of Defense and State under
international law. Id. at 430-31. The plaintiffs claimed that
the U.S. Government and individual U.S. officials caused the
forcible relocation, torture, and killing of island residents in
12
the 1960s as the Government depopulated the island to
establish a military base. Id. In response to the plaintiffs’
allegations, the Attorney General certified that the defendant
government officials had acted within the scope of their
employment. Id. at 431.
This Court concluded that the case presented a
nonjusticiable political question because the “specific tactical
measures allegedly taken” to depopulate Diego Garcia and
build the base were “inextricably intertwined” with foreign
policy questions – such as “the decision to establish a military
base” and “the underlying strategy of establishing a regional
military presence,” neither of which was reviewable. Id. at
436. The Bancoult Court rejected the plaintiffs’ efforts to
distinguish between foreign policy and government officials’
implementation of that policy. Id. at 436-37. Even if the
individual defendants’ “actions were not in conformance with
presidential orders, the actions alleged were still closely
enough connected to [their] employment to bring them within
the ambit of the political question doctrine.” Id. at 437. The
individual defendants acted in pursuit of an authorized goal –
establishing a military base – and as “high-level executive
officers,” they “inherently possessed a large measure of
discretion in carrying out the tasks assigned to them by the
President.” Id. at 438. The Court held that “when the
political question doctrine bars suit against the United States,
this constitutional constraint cannot be circumvented merely
by bringing claims against the individuals who committed the
acts in question within the scope of their employment.” Id.
Under our recent decisions in Schneider, Gonzalez-Vera,
and Bancoult, the political question doctrine plainly applies to
this case. In all three cases, as in Harbury’s case, the
Attorney General certified that the defendants had acted
within the scope of their employment. See Schneider, 412
13
F.3d at 192; Gonzalez-Vera, 449 F.3d at 1262; Bancoult, 445
F.3d at 431. In Schneider and Gonzalez-Vera, as in Harbury’s
case, the plaintiffs contended that U.S. officials were
responsible for physically abusing and killing foreign
nationals in their home country. Schneider, 412 F.3d at 191-
92; Gonzalez-Vera, 449 F.3d at 1261. And although the
plaintiffs in all three cases argued that they challenged
specific acts and not general Executive Branch foreign policy
decisions, this Court reasoned that the cases sought
determinations whether the alleged conduct should have
occurred, which impermissibly would require examining the
wisdom of the underlying policies. Schneider, 412 F.3d at
197; Gonzalez-Vera, 449 F.3d at 1263-64; Bancoult, 445 F.3d
at 436.3
3
In all three cases, as in Harbury’s case, the Attorney General
certified that the government officials had acted within the scope of
their foreign policy or national security employment. In tort cases
arising in the national security or foreign policy context – such as
Schneider, Gonzalez-Vera, and Bancoult – the political question
doctrine counsels strongly against judicial second-guessing of the
Attorney General’s certification for much the same reason that
courts are cautious about entertaining the merits of the tort claims:
Doing so would require courts to intrude deeply into the foreign
policy and national security decisionmaking process of the
Executive Branch. See Christopher v. Harbury, 536 U.S. 403, 417
(2002) (“The action alleged on the part of all the Government
defendants . . . was apparently taken in the conduct of foreign
relations by the National Government. Thus, if there is to be
judicial enquiry, it will raise concerns for the separation of powers
in trenching on matters committed to the other branches.”); cf. Sosa
v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004); Republic of
Austria v. Altmann, 541 U.S. 677, 702 (2004). On the other hand,
the political question doctrine ordinarily would not apply to a tort
case against an individual government official when the Attorney
General has affirmatively declined to issue a scope-of-employment
14
In sum, we find no remotely plausible basis to distinguish
this case from Schneider, Gonzalez-Vera, and Bancoult.
Therefore, under our precedents, we must dismiss Harbury’s
claims based on the political question doctrine.
IV
A recent decision of this Court considered allegations
similar to Harbury’s and did not rely on the political question
doctrine. See Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008).
Even if we likewise do not rely on the political question
doctrine, however, we still affirm the dismissal of Harbury’s
case on alternative jurisdictional grounds. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584-85 (1999). The FTCA
applies to Harbury’s tort claims, and the FTCA bars suits
based on injuries suffered in a foreign country.
In Rasul, former detainees at the U.S. Naval Base at
Guantanamo Bay, Cuba, sued a former Secretary of Defense
and several military officers in their personal capacities,
alleging wrongful detention, physical abuse, and “cruel,
inhuman or degrading treatment.” 512 F.3d at 651. In
response to the charges, the Attorney General issued a
Westfall Act certification that the individual defendants had
acted within the scope of their employment, thereby
converting the claims against the individual officials into
FTCA claims against the United States. Id. at 655. The Court
then dismissed the FTCA claims against the Government for
lack of subject-matter jurisdiction because the plaintiffs had
certification: It commonly would make little sense to dismiss an
otherwise cognizable tort case against an Executive Branch official
as a “political question” when the Executive Branch itself
disclaimed the conduct and concluded that the official acted outside
the scope of employment.
15
failed to exhaust their administrative remedies as required by
the FTCA. Id. at 661; see also 28 U.S.C. § 2675(a).
In the Rasul litigation, the Government did not argue that
the case was nonjusticiable under the political question
doctrine. And this Court did not address that doctrine or our
decisions in Schneider, Gonzalez-Vera, or Bancoult.
The Rasul Court instead considered the detainees’
challenge to the Attorney General’s scope-of-employment
certification. Applying D.C. law, the Court held that the
defendants’ alleged conduct fell within the scope of their
employment because the alleged wrongful acts were “tied
exclusively to the plaintiffs’ detention in a military prison and
to the interrogations conducted therein.” 512 F.3d at 658
(internal quotation marks omitted). The alleged torts
therefore were “incidental to the defendants’ legitimate
employment duties” in detaining and interrogating suspected
enemy combatants. Id. at 659. The Court rested its scope-of-
employment analysis on several D.C. cases holding that
seriously criminal and violent conduct can still fall within the
scope of a defendant’s employment under D.C. law –
including sexual harassment, a shooting, armed assault, and
rape. See id. at 657-58 (citing Howard Univ. v. Best, 484
A.2d 958, 987 (D.C. 1984) (university dean acted within
scope of employment in sexually harassing faculty member
during meetings); Johnson v. Weinberg, 434 A.2d 404, 409
(D.C. 1981) (laundromat employee acted within scope of
employment in shooting customer during dispute over
removing clothes from washing machine); Lyon v. Carey, 533
F.2d 649, 652 (D.C. Cir. 1976) (mattress deliveryman acted
16
within scope of employment in raping customer after dispute
arose during delivery)).4
Under D.C. law as applied in Rasul, the individual CIA
Defendants in this case similarly acted within the scope of
their employment. Their jobs involved hiring and managing
informants, conducting covert operations, and gathering
intelligence. See 50 U.S.C. §§ 403-4(b), 403-4a(d). In
performing those responsibilities, they allegedly gathered
information related to a decades-long civil war in Guatemala
and worked with individuals in Guatemala who abused and
killed Harbury’s husband. Under D.C. law, those actions
were incidental to their authorized conduct: The actions were
“foreseeable” as a “direct outgrowth” of their responsibility to
gather intelligence and were “undertaken on the
[Government’s] behalf.” Rasul, 512 F.3d at 657 (internal
quotation marks omitted). Although Harbury alleges that her
husband suffered physical abuse, that does not alter the scope-
of-employment analysis: The Rasul decision – and the D.C.
4
At first blush, D.C. scope-of-employment law might seem
counterintuitive. How could committing physical abuse, for
example, be within the scope of an individual’s employment? The
explanation is straightforward: Many states and D.C. apply the
scope-of-employment test very expansively, in part because doing
so usually allows an injured tort plaintiff a chance to recover from a
deep-pocket employer rather than a judgment-proof employee. See
RESTATEMENT (THIRD) OF AGENCY § 2.04 cmt. b (2006)
(“Respondeat superior . . . reflects the likelihood that an employer
will be more likely to satisfy a judgment.”). The scope-of-
employment test often is akin to asking whether the defendant
merely was on duty or on the job when committing the alleged tort.
Because of the broad scope-of-employment standard in many states
and D.C., and because the FTCA and the Westfall Act incorporate
the relevant state’s test, tort claims against federal government
employees often proceed against the Government itself under the
FTCA rather than against the individual employees under state law.
17
cases on which the Rasul Court relied – hold that allegations
of physical abuse still fall within the scope of employment if
such actions were foreseeable. See id. at 660 (“[T]he tortious
conduct was triggered or motivated or occasioned by the
conduct then and there of the employer’s business even
though it was seriously criminal.”) (internal quotation marks
and alterations omitted); see also Lyon, 533 F.2d at 655;
Weinberg, 434 A.2d at 409; RESTATEMENT (SECOND) OF
AGENCY § 228(1) (1958).
Because the alleged actions of the individual CIA
Defendants were within the scope of their employment,
Harbury’s claims against the individual CIA Defendants are
properly converted into claims against the Government under
the FTCA. But Harbury’s FTCA claims against the
Government fall squarely within the FTCA’s exception for
claims “arising in a foreign country.” 28 U.S.C. § 2680(k).
In particular, Harbury’s claims on behalf of her husband’s
estate arise in Guatemala because he suffered the alleged
injuries there. See Sosa v. Alvarez-Machain, 542 U.S. 692,
700-01 (2004). And to the extent Harbury alleges her own
emotional injuries in the United States as a result of the death
of her husband, those derivative claims similarly arise in
Guatemala for purposes of the FTCA because they are based
entirely on the injuries her husband suffered there. A plaintiff
in Harbury’s situation cannot plead around the FTCA’s
foreign-country exception simply by claiming injuries such as
“emotional distress” that are derivative of the foreign-country
injuries at the root of the complaint. Much like the now-
defunct “headquarters doctrine,” that practice would threaten
to “swallow the foreign country exception whole.” Id. at 703;
see also Harbury v. Hayden, 444 F. Supp. 2d 19, 43 (D.D.C.
2006). We follow the lead of Sosa and decline to allow this
kind of creative pleading to water down the foreign-country
exception to the FTCA.
18
In sum, even apart from the political question doctrine,
we lack subject-matter jurisdiction to consider Harbury’s tort
claims because the FTCA applies and the claims fall within
that statute’s foreign-country exception.5
5
Harbury also argues that count 28 of her complaint raised a
claim against the individual CIA Defendants under the Torture
Victim Protection Act. As the District Court held, however, count
28 asserted only a common-law international tort claim that, like
Harbury’s other tort claims, was converted into an FTCA claim
against the United States by the Attorney General’s proper scope-
of-employment certification. See Harbury v. Hayden, 444 F. Supp.
2d 19, 37-43 (D.D.C. 2006). Even if Harbury’s complaint had
asserted a TVPA claim, moreover, the claim would pose a
nonjusticiable political question under our precedents. See, e.g.,
Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006)
(TVPA claim, “like any other, may not be heard if it presents a
political question”). (Judge Williams would affirm the dismissal of
count 28 solely on political question grounds and not on the
alternative ground that Harbury failed to state a claim under the
TVPA. In support of that view, he points to the language in count
28 claiming that the individual CIA Defendants participated or
collaborated in torture and extrajudicial execution in violation of
“the law of the United States,” and to two prior opinions of the
District Court (those of March 9, 2000, and March 13, 2001, see
J.A. 112, 119) characterizing Harbury as having “name[d]” the
TVPA as a basis for count 28.)
Apart from those defects, to state a TVPA claim, Harbury
would still have to clear the hurdle of showing that the individual
CIA Defendants – who are of course American officials – acted
“under actual or apparent authority, or color of law, of any foreign
nation.” 28 U.S.C. § 1350 note; see also Arar v. Ashcroft, 414 F.
Supp. 2d 250, 266 (E.D.N.Y. 2006). Because Harbury’s complaint
did not allege a TVPA claim and because such a claim would pose
a nonjusticiable political question, we need not address the scope of
the TVPA as applied to U.S. officials, however.
19
***
We affirm the District Court’s judgment dismissing
Harbury’s suit.
So ordered.