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Harbury v. Hayden

August 1, 2006


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Jennifer K. Harbury brought this action on her own behalf and as administratrix of the estate of her deceased husband, Efrain Bamaca-Velasquez ("Bamaca"), on March 7, 1996 against the Central Intelligence Agency ("CIA"), the Department of State ("State"), and the National Security Council ("NSC"), as well as numerous named individual employees within each of those agencies. Plaintiff's Complaint, as amended, included twenty-eight (28) counts alleging violations variously of constitutional law, international law, and common law arising from the alleged imprisonment, torture, and death in Guatemala of her husband, a guerilla rebel leader in the Guatemalan resistance movement in the early 1990s. See Pl.'s Second Am. Compl. ¶¶ 103-244.*fn1

Following a series of opinions by this Court, the United States Court of Appeals for the District of Columbia Circuit, and the Supreme Court, six counts in Plaintiff's Second Amended Complaint remain viable -- Counts 18-19 (intentional infliction of emotional distress), Counts 20-22 (negligent supervision), and Count 28 (emotional distress/loss of companionship).

Currently before the Court is Defendant's Motion to Dismiss All Remaining Counts of the Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) (hereinafter, "Defendant's Motion to Dismiss"), which contends that this Court lacks subject matter jurisdiction over Plaintiff's action following the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) -- a ruling that held that the Federal Tort Claims Act's ("FTCA") "foreign country exception," see 28 U.S.C. § 2680(k), "bars all claims based on any injury suffered in a foreign country regardless of where the tortious act or omission occurred." Sosa, 542 U.S. at 712, 124 S.Ct. 2739. Upon a searching examination of Defendant's motion, Plaintiff's Opposition, Defendant's Reply, Plaintiff's Surreply, Defendant's Surrebuttal, the relevant case law, and the entire record herein, the Court shall grant Defendant's Motion to Dismiss and shall dismiss all counts remaining in Plaintiff's action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).


Given that the basic facts and allegations of this case have been fleshed out in great detail in previous decisions relating to this case, see, e.g., Christopher v. Harbury, 536 U.S. 403, 406-410, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), the Court shall only briefly summarize the relevant background in this Memorandum Opinion.*fn2 Plaintiff Jennifer K. Harbury, a United States citizen, is the widow of Efrain Bamaca-Velasquez, a Guatemalan citizen and rebel leader in the Guatemalan National Revolutionary Union ("U.R.N.G.") who vanished in his own country in March 1992. See Pl.'s Second Am. Compl. ¶¶ 9, 33-34. According to Plaintiff's allegations, Bamaca was captured by Guatemalan army forces, including officers who were trained in the United States and paid/used as informants by the CIA. Id. ¶¶ 35-42, 46-47. Bamaca was then summarily executed on orders of the same Guatemalan officers affiliated with the CIA, id. ¶¶ 48-49, sometime before September 1993, id. ¶¶ 66, 84.

Plaintiff asserts that the CIA knew as early as March 18, 1992 that the Guatemalan army had captured Bamaca alive and shared this information with both the White House and the State Department. Id. ¶ 35. However, when Plaintiff sought aid from the State Department in the search for her husband, officials therein "intentionally misled" Plaintiff, by "deceptive statements and omissions, into believing that concrete information about her husband's fate did not exist because they did not want to threaten their ability to obtain information from Mr. Bamaca through his detention and torture." Id. ¶ 67. Throughout the period stretching from 1992 through 1995, Plaintiff was in frequent contact with the State Department, seeking to gain any information relating to her husband and participating in various hunger strikes to focus public attention on the issue. Id. ¶¶ 56-68, 70-71, 75, 80, 83. Plaintiff finally learned of her husband's death in March 1995 -- nearly one and a half years after his apparent passing -- when a congressman publicly announced that Bamaca had been killed on the orders of a Guatemalan army colonel who was also a paid contractor of the CIA. Id. ¶ 91.

A year later, in March 1996, Plaintiff brought the present suit before this Court against the CIA, the State Department, the NSC, and various members of each agency in their official and individual capacities. See generally Compl. Plaintiff's Second Amended Complaint, which is currently the controlling document in this case, listed twenty-eight (28) causes-of-action under federal, state, and international law. Following a series of decisions, such as this Court's March 23, 1999 Memorandum Opinion and Order, see Harbury v. Deutch, No. 96-00438 (CKK), 1999 WL 33456919 (D.D.C. Mar. 23, 1999), aff'd in part, rev'd in part, 233 F.3d 596 (D.C. Cir. 2000), aff'd 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (affirming the district court opinion in full, reversing the D.C. Circuit's reversal-in-part), and this Court's March 9, 2000 Memorandum Opinion and Order, see Harbury v. Deutch, Civ. No. 96-438 (D.D.C. Mar. 9, 2000), only six (6) counts remain presently viable in this case -- Counts 18-22, and Count 28. These remaining counts may be grouped into two major categories. First, Plaintiff has alleged common law torts invoking the Federal Tort Claims Act, 28 U.S.C. §§ 2401(b) and 2675, (1) on behalf of herself and her husband's estate against the CIA defendants for intentional infliction of emotional distress by causing and conspiring to cause Bamaca's imprisonment, torture, and execution, see Pl.'s Second Am. Compl. ¶¶ 196-201 (Counts 18-19); and (2) on behalf of her husband's estate against the CIA defendants for negligent supervision resulting in his false imprisonment, assault and battery, and wrongful death, id. ¶¶ 202-216 (Counts 20-22). Second, Plaintiff has bought a tort claim said to arise under "international law, including the law of war" against the CIA defendants on behalf of herself and her husband's estate, id. ¶¶ 241-244 (Count 28). Given concerns regarding the scope and clarity of Count 28, the Court ordered and Plaintiff provided a "Submission of a More Detailed Statement Regarding Count 28 of Her Complaint" on April 19, 1999. See Pl.'s Submission of Detailed Stmt. re: Count 28 at 1-7.

Importantly, on March 31, 2000, the Attorney General certified that the seventeen (17) individually-sued federal defendants were acting within the scope of their employment with respect to the incidents alleged in Plaintiff's Second Amended Complaint. See Cert. of Mark E. Nagle on behalf of the Attn'y Gen., attached to Defs.' Suppl. Mot. to Dismiss (Apr. 3, 2000). By operation of 28 U.S.C. § 2679(d)(4), the so-called Westfall Act, Plaintiff's action became one against the United States as the sole party defendant. Pursuant to 28 U.S.C. § 2679(b)(1) ("exclusiveness of remedy"), Plaintiff's action -- from that point forward -- became governed exclusively by the FTCA, including the limitations and exceptions to the waiver of sovereign immunity set forth in that statutory scheme.

Concurrent with the Attorney General's certification, Defendant filed a supplemental motion to dismiss in this case. Through a Memorandum Opinion and Order dated March 13, 2001, this Court denied without prejudice the Government's supplemental motion seeking dismissal on the basis of the discretionary function and independent contractor exceptions to the FTCA, and denied without prejudice the Government's motion seeking dismissal on the basis of the political question doctrine and the "foreign country exception" to the FTCA, 28 U.S.C. § 2680(k) (excepting from FTCA jurisdiction "[a]ny claim arising in a foreign country"). See Harbury v. Deutch, Civ. No. 96-438 (CKK) (D.D.C. Mar. 13, 2001) (memorandum opinion and order denying Government's supplemental motion to dismiss). In rejecting the "foreign country exception" as the basis for dismissal, the Court relied on the D.C. Circuit's decision in Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979), emphasizing that "the United States enjoys no exemption from liability 'for acts or omissions occurring here which have their operative effect in another country.'" Id. at 17 (quoting Sami, 617 F.2d at 762). Pursuant to Sami, which was then controlling precedent, the Court therefore found that "to the extent Harbury alleges tortious acts which occurred in the United States, though their effect might have been felt in Guatemala, these are not covered by the foreign country exception." Id.; see also id. at 17 n.11 (noting that the "foreign country exception" also does not bar "those acts occurring here which [Harbury] alleges took effect here, such as the acts allegedly occasioning her claim of intentional infliction of emotional distress").

The United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), issued on June 29, 2004, specifically rejected the "headquarters doctrine" established in Sami, see id. at 701, 124 S.Ct. 2739 (explicitly abrogating Sami), under the theory that such a doctrine "threatens to swallow the foreign country exception whole, certainly at the pleading stage," id. at 703, 124 S.Ct. 2739. Following an analysis of the language and legislative history of the FTCA's "foreign country exception," the Sosa Court laid down the basic rule that "the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred." Id. at 711, 124 S.Ct. 2739. Given the abrogation of Sami in the wake of Sosa and the apparent tenuousness of this Court's March 13, 2001 Memorandum Opinion and Order, Defendant has filed a Motion to Dismiss All Remaining Counts of the Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3). Defendant's motion contends, in short, "[b]ecause Sosa eliminates from the jurisdictional reach of the FTCA all claims based on harm occurring in a foreign country, there is no subject matter jurisdiction over this action and the action must be dismissed as a matter of law." Def.'s Mot. to Dismiss at 5.


Defendant brings this motion pursuant to Federal Rule of Civil Procedure 12(h)(3), which provides: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3). However, Rule 12(h)(3) merely clarifies that lack of subject matter jurisdiction is a defense that is never waived and that, if such jurisdiction is lacking, the appropriate disposition is dismissal. See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1347, at 49 (3d ed. 2004). When faced with what a party characterizes as a Rule 12(h)(3) motion, a court should treat the motion as a traditional Rule 12(b)(1) motion for lack of subject matter jurisdiction. See Haase v. Sessions, 835 F.2d 902, 905-06 (D.C. Cir. 1987) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)); see also United States ex rel. El-Amin v. George Washington Univ., No. Civ. A 95-2000 (JGP), 2005 WL 485971, at *3 (D.D.C. Feb. 25, 2005).

A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1). In general, a motion to dismiss under Federal Rule of Civil Procedure 12(b) should not prevail "unless plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A court may appropriately dispose of a case under 12(b)(1) for standing, and may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Artis v. Greenspan, 223 F. Supp. 2d 139, 152 n.1 (D.D.C. 2002) ("A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject matter jurisdiction."); Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) ("where a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment") (citing Greenberg v. The Life Ins. Co. of Virginia, 177 F.3d 507, 515 (6th Cir. 1999)). At the stage in litigation when dismissal is sought, the plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).


In response to Defendant's Motion to Dismiss and its reliance upon the Sosa decision, Plaintiff agrees that "the Sosa ruling applies . . . to tort claims for which the United States may lawfully substitute itself for individually named defendants" and "to claims based on harms occurring outside United States territory." Pl.'s Opp'n at 1. Indeed, based on Sosa's mandate that a federal court may not maintain jurisdiction over FTCA claims based on injury arising in a foreign country, Plaintiff appears to implicitly concede that all common law claims brought on behalf of her husband, Bamaca, must fail.*fn3

However, Plaintiff takes a two-pronged approach in maintaining that at least some of her claims remain viable. First, Plaintiff argues that the Attorney General's March 31, 2000 Westfall certification was improper. See Pl.'s Opp'n at 2-11. Rather, given the "extraordinary nature" of a claim of torture, Plaintiff asserts that the acts of the individual defendants at issue were ultra vires; as such, it was inappropriate for the Government to assert that those actions could have fallen within the scope of the defendants' employment. See id. Because the United States could not properly be substituted as the sole defendant, the FTCA and its inherent limitations -- as set forth in Sosa -- do not apply to Plaintiff's situation. See id. Second, irrespective of the Westfall issue, Plaintiff contends that (1) her claims under international law -- which she now designates as claims under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, and the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 Note, see Pl.'s Opp'n at 1 -- and (2) claims alleging her own personal distress, suffered within the borders of the United States, survive the Supreme Court's Sosa decision. See Pl.'s Opp'n at 1; Pl.'s Surreply at 1. Upon a closer inspection, each of Plaintiff's arguments is without merit.

A. The Propriety of the Westfall Certification in This Action

Plaintiff first attempts to escape the Supreme Court's FTCA-related mandate in Sosa, which eliminated the "headquarters doctrine" and substantially bolstered the "foreign country exception," by making an end-run around the FTCA itself. That is, Plaintiff now contends that the Attorney General's March 31, 2000 Westfall certification in this case -- substituting the Government for all individual defendants -- was improper. Without the Government as the sole defendant, the FTCA would not be applicable to Plaintiff's case, and Sosa would no longer exist as a bar to the claims set forth in her Second Amended Complaint. In order to fully examine the merits of Plaintiff's challenge, the Court shall first review the history and parameters of the Westfall certification process, and then shall turn to an analysis of Plaintiff's specific challenge.

1. History/Parameters of the Westfall Certification Process

Following the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"), Pub. L. No. 100-694, 102 Stat. 4563 (codified at 28 U.S.C. §§ 2671, 2674, 2679). In Westfall, the Supreme Court held that while federal officials generally enjoy absolute immunity from state tort lawsuits for money damages, that immunity is dependent on whether their conduct was both within the scope of employment and discretionary in nature. See Westfall, 484 U.S. at 299, 108 S.Ct. 580. The Westfall Act eliminates the "discretionary" requirement and provides that federal employees' immunity from state tort lawsuits hinges exclusively on whether they were acting within the scope of employment during the alleged incident. See 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 163, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991); Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C. Cir. 1995).

Under the Westfall Act, an Attorney General or designee who believes that a federal employee was acting within the scope of employment at the time of the alleged incident may issue a certification to that effect. See 28 U.S.C. § 2679(d)(2) (certification by Attorney General); 28 C.F.R. § 15.3 (certification by designee); Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). A Westfall certification has two immediate consequences for a case already in federal court: (1) it requires the substitution of the United States for the federal employee(s) as the defendant(s) in the lawsuit; and (2) it converts the lawsuit into an action against the United States under the FTCA. See 28 U.S.C. § 2679(d)(2); Smith, 499 U.S. at 161-62, 111 S.C. 1180. However, while a Westfall certification is conclusive for the purposes of removal, see 28 U.S.C. § 2679(d)(2), such a certification is not conclusive regarding the substitution of the federal government. See Lamagno, 515 U.S. at 431-35, 115 S.Ct. 2227. That is, upon challenge or a sua sponte inquiry, the federal court may determine independently whether the employee acted within the scope of employment and, therefore, whether to substitute the federal government as the proper defendant. Id.; see also Haddon, 68 F.3d at 1423; Kimbro v. Velten, 30 F.3d 1501, 1505 (D.C. Cir. 1994), cert. denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). Upon a challenge, the plaintiff bears the burden of producing evidence that a defendant was acting outside the scope of his employment to defeat the "prima facie" effect of a Westfall certification. See Kimbro, 30 F.3d at 1509 (citing Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994)); Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003); Schneider v. Kissinger, 310 F. Supp. 2d 251, 264 (D.D.C. 2004), aff'd on other grounds, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 126 S.Ct. 1768, 164 L.Ed.2d 515 (2006); Wright v. United States, No. 95-0274, 1996 U.S. Dist. LEXIS 1781, at *8 (D.D.C. Feb. 8, 1996).

If the reviewing court determines that the employee acted within the scope of official duties, the employee becomes absolutely immune from actions for money damages arising from the same incident; the plaintiff's only recourse is to proceed against the federal government under the FTCA. See 28 U.S.C. § 2679(b)(1); Lamagno, 515 U.S. at 425-29, 115 S.Ct. 2227; Haddon, 68 F.3d at 1423. If, however, the reviewing court determines that the employee acted outside the scope of employment, the court must re-substitute the federal employee as the defendant. Id.

2. Plaintiff's Present Challenge to the March 31, 2000 Westfall Certification

Plaintiff, in her Opposition and Surreply to Defendant's Motion to Dismiss, now attempts to challenge the March 31, 2000 Westfall certification in this case. See Pl.'s Opp'n at 2-11; Pl.'s Surreply at 1-10. Specifically, Plaintiff claims that any acts of direct conspiracy, involvement, and participation in torture, as alleged in her complaint, would fall far outside the scope of the CIA's grant of authority from the United States Congress. In turn, under well settled law, such actions are automatically ultra vires, and can never be attributed to the government.

They are, de facto, beyond the agency's power or jurisdiction. Thus the defendant officials cannot claim any sovereign immunity, and must face any and all legal consequences in their individual capacities. Pl.'s Surreply at 2 (citing Dugan v. Rank, 372 U.S. 609, 621-23, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)). Plaintiff then cites a portion of the legislative history of the FTCA itself to support this interpretation, noting that the House Report states that the legislation was intended to provide that the United States will incur various liability only for the common law torts of its employees which are committed within the "scope of their employment." If an employee is accused of egregious misconduct, rather than mere negligence or poor judgment, then the United States may not be substituted as the defendant, and the individual employee remains liable.

Id. at 4 (citing H.R. Rep. No. 700, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 5945, 5949). As such, because the tortious act alleged as the basis of her claims -- i.e., torture -- "exceed[s] the limits of the agency' [sic] statutory delegation of power" and is so illegal as to be beyond any statutory authorization, Plaintiff claims that the Government may not properly substitute itself pursuant to the Westfall Act; that is, the individual defendants were clearly exceeding the scope of their employment in a manner that cannot be attributed to the Government and covered by the FTCA, and these defendants must remain in this suit. See Pl.'s Opp'n at 2, 4, 5.

As discussed below, two fundamental problems undermine Plaintiff's challenge to the March 31, 2000 Westfall certification in this case. First, Plaintiff's present challenge to the certification is now prejudicially untimely. Second, even assuming arguendo that such a challenge was timely and could be considered on the merits, Plaintiff misapprehends the relevant "scope-of-employment" test for the Westfall Act/FTCA. An application of the correct test, under the required examination, leads to one inexorable conclusion: the individual defendants were acting within the scope of their employment in undertaking the alleged, tortious actions and substitution was therefore proper. Accordingly, Plaintiff's Westfall Act challenge must be rejected, the FTCA applied, and a Sosa-related impact analysis undertaken.

a. Plaintiff's Westfall Challenge is Prejudically Untimely

As a preliminary matter, Plaintiff's present Westfall Act certification challenge, raised in her present Opposition, is prejudicially untimely. In response to this issue, Plaintiff refers to pages 7-11 of her Opposition to Defendant's Supplemental Motion to Dismiss, filed on May 12, 2000. Plaintiff contends that a review of this filing establishes that "Plaintiff challenged the substitution of the United States for the CIA Defendants" almost immediately after that substitution was made, and, therefore, this "renewed" challenge cannot be prejudicially untimely as a matter of law. See Pl.'s Opp'n at 2 & n.4. Importantly, Plaintiff now expressly admits that "substitution into the claims for negligent supervision was not challenged by the Plaintiff," Pl.'s Surreply at 7 -- an admission that seems to indicate that Counts 20-22 of her Second Amended Complaint (her claims for negligent supervision) are no longer viable, as the Government is therefore now the sole defendant as to these claims, the FTCA applies, and Sosa's interpretation on the "foreign country exception" takes hold.

However, Plaintiff continues to maintain that her May 12, 2000 Opposition brief did call into question "substitution into the claims for direct participation in and conspiracy to commit torture." See Pl.'s Surreply at 7 (noting that her previous brief argued, "'[t]o the extent that the government has purported to substitute the United States for the individual defendants with respect to the international law claims, that attempt fails'") (quoting Pl.'s Opp'n to Def.'s Suppl. Mot. to Dismiss at 7).*fn4 A review of the actual filing in question undermines Plaintiff's bold assertion that she previously challenged the validity of the Attorney General's March 31, 2000 Westfall certification. It is noteworthy that nowhere in her Opposition brief did Plaintiff challenge the scope of the Attorney General's certification -- i.e., whether the individual defendants were acting within the scope of their employment and could, as an initial matter, actually be substituted out of the case. See id. (Plaintiff, in her Surreply, basically concedes that she never previously made a scope of delegation challenge, admitting that "[t]he broader question of Congressional delegation and the scope of CIA authority was unnecessary at the time, in light of the case law then"). Rather, it is clear that in her May 12, 2000 Opposition, Plaintiff simply challenged the legal operation of the Westfall certification to have substituted the United States for the individually-named defendants as to Plaintiff's Count 28 claims under the ATCA and TVPA. See Pl.'s Opp'n to Def.'s Suppl. Mot. to Dismiss at 7-11. Such a challenge rested, not on the validity of the Attorney General's Westfall certification, but on the construction of 28 U.S.C. § 2679(b)(2)(B), which exempts from Westfall substitution claims brought "for a violation of a statute of the United States under which such action against an individual is otherwise authorized." As such, Plaintiff's present gloss is specious: her reasoning is based on a failure to distinguish between a challenge to the validity of a Westfall certification (i.e., Did the Attorney General rely on the proper legal criteria in rendering the scope-of-employment determination?) and a challenge to the legal operation of that valid certification (i.e., For which claims can the United States be substituted for the individual federal defendants?). A plain review of the totality of Plaintiff's May 12, 2000 challenge indicates that Defendant was never, until now, placed on notice that Plaintiff was challenging the validity of the certification itself.

This time lapse -- over four (4) years between the Westfall certification and Plaintiff's present challenge -- is significant. Like the defenses of absolute and qualified immunity available to employees under a Bivens action, the Westfall Act confers essentially "an immunity from suit rather than a mere defense to liability" that, like the Bivens-related immunity, "is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also Kimbro, 30 F.3d at 1504 (relying upon Mitchell's reasoning to hold that a pre-trial denial of Westfall Act protection is an immediately appealable final decision). Indeed, this Court noted in its March 23, 1999 Memorandum Opinion (anticipating the Government's Westfall certification), that upon forthcoming certification, "the United States will automatically be substituted for the individual defendants." Harbury, 1999 WL 33456919 at *14 (citing 28 U.S.C. ยง 2679(d)(1)). Since April of 2000, the individually-named federal defendants and their counsel have been operating on the basis that they are no longer defendants in this action. For the Court to entertain Plaintiff's new challenge to the scope of the Westfall ...

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