Tort Claims for Torture in Iraq

[Sisk, Gregory C.]

Jonathan raises a very good point.  I had forgotten about the Marcos case in
the Ninth Circuit, which indeed could be a precedent here for arguing that
the prison guards in Iraq acted beyond the scope of employment and thus
cannot claim immunity under the Westfall Act.

Of course, the Ninth Circuit's analysis of the Foreign Sovereign Immunity
Act and determination that Marcos was subject to liability under the ATCA
was not without controversy at the time and that debate would be reopened if
a similar argument were made here (but I'd defer on that to someone who
knows more about the FSIA and ATCA than I).  Moreover, I would anticipate
the argument being raised that the Foreign Sovereign Immunity Act is
different as it addresses the legitimate scope of governmental authority
which presumably would involve application of international law norms, while
the Westfall Act turns on the scope of federal government employment which
is determined by state law.

In addition, I would expect the military prison guards to argue that, even
if the Marcos case is correct as a matter of law, it is limited to the
context of torture and murder as especially egregious wrongs.  While some of
the incidents in the Iraq prison episode could be characterized as torture,
many appear to rather to be incidents of abuse and humiliation.  I don't
wish to depreciate the wrongful and despicable nature of the conduct, and
certainly appreciate that this conduct violates norms of human rights, but I
wonder whether each incident would fall into the category of torture or
should be regarded as the equivalent for legal purposes?  Surely, while
disturbing, what happened in Iraq is not on the same level as the kind of
torture and murder that Marcos was accused of orchestrating?

Greg Sisk

-----Original Message-----
From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
Sent: Friday, May 07, 2004 8:44 PM
To: Sisk, Gregory C.
Cc: 'Scarberry, Mark'; 'CONLAWPROF'
Subject: Re: Tort Claims for Torture in Iraq

The same issue of acting within the scope of employment has been 
litigated in the Alien Tort Statute context to avoid application of the 
Foreign Sovereign Immunity Act.  In the cases against Ferdinand Marcos 
and his daughter, the 9th Circuit took the position that since torture 
was illegal in the Phillipines acts of torture could not be considered 
within the scope of  the authority of the government official,  see 25 
F3d 1467, 1472 (1994) and 978 F2d 497-498.  While the 9th Ciruit may be 
the most assertive on these issues, perhaps even a conservative judge 
could be persuaded that torture and extrajudicial killings are so 
fundamentally wrong that  by definition they fall outside the scope of 
authority.  -- Of course the odd catch is that in order to be torture it 
must be committed under at least color of official authority.

Jonathan Miller

Sisk, Gregory C. wrote:

>You know, Mark, great minds must think alike, and thanks for the kind
words.
>I had just begun typing out a message to qualify/add to my earlier comments
>and offer up for inquiry whether there is room here to make an argument
that
>these guards were not in fact "acting within the scope of [their] office or
>employment," within the Westfall Act, meaning the guards would remain
>subject to suit as individuals with no immunity.  Thus, hypothetically, the
>Attorney General could contend that their behavior so far departed from the
>rules of conduct under military law that they were not acting within the
>scope of employment.  The Attorney General thus hypothetically could refuse
>to certify the matter under the Westfall Act (which is the first step in
>granting employee immunity and substituting the U.S. as defendant, although
>the grant or refusal to grant certification is reviewable in court if a
>plaintiff or individual employee defendant objects).
>
>The lower federal courts have held that the question of whether a
government
>employee was acting within the scope of employment is determined within the
>framework of state law.  The First Circuit has explained it this way, in
the
>context of the Westfall immunity/substitution determination:  "Federal law
>determines whether a person is a federal employee and defines the nature
and
>contours of his official responsibilities; but the law of the state in
which
>the tortious act allegedly occurred determines whether the employee was
>acting within the scope of those responsibilities."  Lyons v. Brown, 158
>F.3d 605, 609 (1st Cir. 1998).
>
>Accordingly, while the question of whether the employee's conduct in a
>particular case was within the scope of his or her federal duties may be
>largely a factual one, state legal precedent may establish a framework for
>evaluating a set of facts, such as presumptions based upon certain factors
>or the weight to be given to the presence of a particular fact or element.
>Thus, state law may be important on such questions as the importance of the
>act taking place on the employment premises, e.g., McLachlan v. Bell, 261
>F.3d 908, 911-12 (9th Cir. 2001) (applying California law to determine that
>federal employees acted within scope of employment when engaging in
>harassing conduct where the entire affair took place at work, in ways
>relating to work, and on issues arising out of work); whether conduct
>occurring after hours at a remote or recreational site falls within the
>scope of employment, e.g., Snodgrass v. Jones, 957 F.2d 482, 485 (7th Cir.
>1992) (holding that, under Illinois law, a federal employee could not be
>determined to have been acting in scope of his employment while "hanging
>out" at a bar, simply because part of his duty was to act as liaison with
>other law enforcement agencies and he was talking with a former FBI agent);
>or the significance of whether the employee was acting with a private
>purpose or with an intent to serve employer's interest, e.g., Davric Maine
>Corp. v. U.S. Postal Service, 238 F.3d 58, 66-67 (1st Cir. 2001) (holding
>that, under Maine law, seemingly work-related acts taken by federal
employee
>would fall outside of scope of employment if done with a private purpose,
>but would be within scope of employment if done in good faith to serve the
>employer's interest, even if the federal employee's judgment was mistaken);
>Maron v. United States, 126 F.3d 317, 326-27 (4th Cir. 1997) (under
Maryland
>law, acts of harassment were done within scope of employment if the
employee
>was motivated at least partially by the desire to perform duties properly
>even if the employee also had personal and improper motives).
>
>Of course, that creates a problem here, since the tort did not occur in any
>state, but rather in Iraq, thus making it difficult to determine what
>state's law ought to apply here (and, no, Iraqi employment law would not
>work as a substitute).  Still, that may not be an insurmountable problem,
as
>choice of law analysis may direct us to the law of some state, where the
>defendant resides or was based prior to deployment in Iraq, or at least to
>Washington, D.C.  For example, in Gutierrez de Martinez v. Lamagno, 515
U.S.
>417 (1995), involving an accident in which one of the vehicles was driven
by
>a DEA agent in Columbia, the suit was filed in diversity in the Eastern
>District of Virginia where the DEA agent maintained residence.  After the
>Supreme Court held that the Westfall certification by the Attorney General
>is reviewable in court, the Fourth Circuit applied Virginia law to
determine
>that the DEA agent was acting within the scope of employment at the time of
>the accident (meaning that the U.S. was substituted as a defendant and then
>was immune from liability under the FTCA due to the foreign country
>exception).  Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1156-58 (4th Cir.
>1997).
>
>If I had to guess as to the likely outcome, though, I'd observe that the
>cases I've read in the Westfall context tend to find under various state
law
>rules that wrongful conduct committed during the course of assigned work
and
>connected to employment-related activities are regarded as within the scope
>of employment.  For example, as in some of the cases cited above,
harassment
>of co-employees often is regarded as being within the scope of employment
>under state law principles.  Given that the guards were working as guards
on
>site and the abuse is related to that activity, I'd predict they would be
>found to be within the scope of employment at the time.  But I can imagine
a
>viable argument to the contrary and, again, it will turn on some particular
>state's law.
>
>State law scope of employment rules generally evolve in the context of
>determining when the employer is liable in respondeat superior for the
>wrongdoing of an employee, meaning that I suspect that there is some
>tendency to view that scope of employment broadly to enhance employer
>accountability.  Ironically, or perversely some might say, application of
>those state law rules to the Westfall context sometimes has the opposite
>effect of immunizing both the employee and, because of FTCA limitations,
the
>federal government as well, thus narrowing tort liability.  Of course, in
>the ordinary case, involving garden-variety negligence, like a car
accident,
>substituting the U.S. under the FTCA often benefits the plaintiff by
putting
>a financially-responsible defendant in place (although limitations, like no
>punitive damages, may reduce the overall award).
>
>Note that if a court were to conclude that the action of the guards so
>departed from the directions of superiors and military orders as to not be
>within the scope of employment, then it becomes more difficult to argue
that
>higher government official in Washington, D.C. were responsible becomes
more
>difficult and thus the attempt to get around the "foreign country"
exception
>to the FTCA by arguing that location of the wrongdoing was at the
>headquarters in Washington.
>
>Greg
>
>-----Original Message-----
>From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu] 
>Sent: Friday, May 07, 2004 6:57 PM
>To: 'CONLAWPROF'
>Subject: RE: Tort Claims for Torture in Iraq
>
>Is it clear that guards engaged in abusing prisoners are acting in the
scope
>of their employment? If a superior officer or supervisor told them to do it
>in order to prepare a detainee for interrogation, then I would suppose the
>action would be within the scope of employment, but otherwise that would
not
>seem clear to me. Perhaps Greg can tell us what the FTCA standard is for
>when actions are "in the scope of employment."
>
>(By the way, I'm sure I'm not the only one on the list who appreciates the
>time Greg has taken to comment in such detail on these important issues.)
>
>Mark S. Scarberry
>Pepperdine University School of Law
>
>
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>  
>

-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784


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