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Version 1 5:45 AM 12/25/2009
Pretzel Logic in a DC Court of Appeals Opinion Re Torture of Guantanomo Detainees, which the Supreme Court has Refused to Review
Recently, a big news story has been that the Supreme Court has refused to hear ( an appeal of a case previously decided in the United States Court of Appeals for the District of Columbia Circuit, "Rasul, Shafiq vs. Rumsfeld, Donald" (January 11, 2008) ( (
Aside from and above and beyond the question of whether the US Court of Appeals for the DC Circuit acted properly in basically exonerating the defendants in the case, the Opinion for the Court filed by the Circuit Judge, to me as of now sounds so nutty as to make me quite afraid to travel to Washington DC, and very pessimistic re the future of the country.  
For now I focus on the subsection of the Opinion, entitled "A. The ATS Claims". The fact that so much 'pretzel logic' can be found in an opinion of a Court of Appeals is scary and tells you something re this nation's law schools.
My translation of legalese, and my comments regarding the text of the judge's opinion, are in crimson boldface. The text of the judge's opinion is in black text.
A. The ATS Claims

District court ruled that since the defendant's alleged transgressions occurred within the scope of their employment, under the Westfall Act: they had to file an administrative complaint with the relevant government agency before suing in court; and, any lawsuit they brought before a court had to be directed against the US, as opposed to the alleged transgressors who were employees of the US.

The US AG's finding that the defendants were acting within the scope of their employment, under the law means plaintiffs have to prove to the court that the conduct did not fall within the scope of the employment; if the court finds that they were acting within the scope of employment, the plaintiffs must take action against the US, not the employees of the US, under the FTCA.

"Scope of employment questions are governed by the law of the place where the employment relationship exists."...We look, then, "to the decisions of the Court of Appeals for the District of Columbia for our guidance on the local law." Id. "'As its framework for determining whether an employee acted within the scope of employment, the Court of Appeals for the District of Columbia looks to the Restatement (Second) of Agency (1957).'... According to the Restatement, the "'[c]onduct 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; (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.'"..."'Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'"

The question here is, when an employee transgresses, who should be held responsible, the employer or the employee. The idea expressed, is basically that when an employee transgresses in the course of behaving the way one would expect a reasonable normal employee to behave, the employer is responsible; outside of this, the employee is responsible. But getting bogged down in rules used to establish whether the employee or the employer is guilty, seems to have produced a gross departure from sanity and common sense.

On March 10, 2005, the Attorney General duly certified that "[o]n the basis of the information now available," all of the defendants were acting within the scope of their employment "at the time of the conduct alleged in the complaint."...Applying the four Restatement factors, the district court concluded that "the alleged actions of the defendants were within the scope of their employment."... First, it agreed with the defendants that their alleged authorization, implementation and supervision of torture was "'incidental to the conduct authorized.'...It noted that the United States authorized military personnel in Guantanamo "to exercise control over the detainees and question the detainees while in the custody of the United States,"...and that "torture is a foreseeable consequence of the military's detention of suspected enemy combatants."...It also emphasized that the "complaint alleges torture and abuse tied exclusively to the plaintiffs' detention in a military prison and to the interrogations conducted therein." Examining the second factor, the district court observed that "the parties do not dispute that the defendants' actions took place within the time and place limitations sanctions [sic] by the United States." Regarding the third factor, the district court ruled that the defendants "were acting, at least in part, to further the interests of their employer, the United States." It noted that the plaintiffs did "not allege that the tortious actions arose purely from personal motives, but claim[ed] that the defendants' actions are inextricably intertwined with their respective roles in the military." It also observed that "[t]he plaintiffs have not proffered any evidence that would lead this court to believe that the defendants had any motive divorced from the policy of the United States to quash terrorism around the world." And regarding the fourth factor, the district court concluded that while the alleged "aggressive techniques may be sanctionable within the military command,...the fact that abuse would occur is foreseeable." It emphasized that "the heightened climate of anxiety, due to the stresses of war and pressures after September 11 to uncover information leading to the capture of terrorists, would naturally lead to a greater desire to procure information and, therefore, more aggressive techniques for interrogations."

Any given action can have several different foreseeable consequences. Torture may be a foreseeable consequence of military detention of enemy combatants. On the other hand, the absence of torture is also a foreseeable consequence of military detention of enemy combatants, given the culture and traditions of the United States.

The plaintiffs do not contest that the second, third and fourth factors listed in section 228(1) of the Restatement support the conclusion that the defendants acted within the scope of their employment in authorizing, implementing, supervising and condoning the plaintiffs' alleged torture and detention. They do challenge the district court's conclusion that the defendants' alleged authorization, supervision and implementation of torture was incidental to the conduct authorized, claiming that the defendants' conduct "was never authorized," was "seriously criminal," "has long [been] condemned" by the United States and was a "substantial departure from the government's 'normal method' of detaining and interrogating persons of interest." Alternatively, the plaintiffs assert that even if the defendants' conduct falls within the scope of their employment, their claims come within the exception included in the Westfall Act for "a civil action against an employee of the Government . . . which is brought for a violation of the Constitution of the United States." Finally, the plaintiffs argue that the district court erred in dismissing their claims without allowing them to conduct discovery.

1. Scope of Employment

Paragraph 1: According to the detainees, we cannot conclude that the formulation, approval and implementation of a policy of torture is "of the kind" of conduct the defendants were employed to perform. To be "of the kind" of conduct an individual is employed to perform, the Restatement explains that the "conduct must be of the same general nature as that authorized, or incidental to the conduct authorized." Restatement (Second) of Agency 229(1). The defendants respond that "[w]here high-level military officials are charged with winning the war on terror, and specifically with detaining and obtaining information from suspected terrorists, the officials' policies on detention and interrogation, and their supervision of the implementation of those policies, is at least 'incidental' to those duties."

In Haddon , we held that whether conduct is incidental depends on whether the conduct is a "direct outgrowth" of an employment assignment:

According to the D.C. Court of Appeals, conduct is "incidental" to an employee's legitimate duties if it is "foreseeable." "Foreseeable" in this context does not carry the same meaning as it does in negligence cases; rather, it requires the court to determine whether it is fair to charge employers with responsibility for the intentional torts of their employees. To be foreseeable, the torts must be "'a direct outgrowth of the employee's instructions or job assignment.'"

Paragraph 2: More recently, in Ballenger , although we did not explicitly use Boykin ' s "direct outgrowth language," we nonetheless emphasized that whether conduct is incidental depends "on the underlying dispute or controversy, not on the nature of the tort." We explained that the "incidental" prong "is broad enough to embrace any intentional tort arising out of a dispute that was originally undertaken on the employer's behalf."  In Ballenger , we examined whether a congressman's allegedly defamatory comments made during a telephone conversation fell within the scope of his office. We explained that "[t]he appropriate question, then, is whether that telephone conversation-not the allegedly defamatory sentence-was the kind of conduct Ballenger 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,'" we held that the allegedly defamatory statement was incidental to his office.

Here the court's reasoning leads to the idea that, if a truck driver shoots someone while driving a truck, the transgression is incidental to his employment, and so therefore the employer who employs the truck driver should be the one who is sued; whereas, if a truck driver shoots someone while he is on his lunch break, the transgression is not incidental to the employment, and the truck driver should be the one who is sued. This makes no sense and contradicts the whole purpose of the Restatement's attempt to fairly determine who should be the victim of a lawsuit by an offended party.

Paragraph 3: Similarly, in Lyon v. Carey, this Court upheld a jury verdict holding a deliveryman's employer liable because the employee acted within the scope of his employment when he assaulted and raped a customer. The Court reasoned that the assault "arose naturally and immediately between [the deliveryman] and the plaintiff about two items of great significance in connection with his job[:] the request of the plaintiff . . . to inspect the mattress and springs before payment . . . and [the deliveryman's] insistence on getting cash rather than a check." The Court also noted that "[t]he dispute arose out of the very transaction which had brought [the deliveryman] to the premises."(upholding jury verdict that laundromat employee acted within scope of his employment when he shot customer during dispute over removal of clothes from washing machine because "[t]he assault arose out of the transaction which initially brought [the customer] to the premises . . . and was triggered by a dispute over the conduct of the employer's business");  (holding that jury could reasonably find that university dean acted within scope of employment when he sexually harassed faculty member during faculty, administrative and other professional meetings).

The paragraph above features the kind of reasoning that is a nightmare of irrationality for employers, and that leads to the demise of the American employer in his attempts to compete with foreign employers, which in turn is a prime cause of national economic disaster. In contradiction to such, the whole purpose of the constitution is stated by the constitution itself, to be to promote the general welfare of the people of the nation and their future descendants; and it has been said, that all laws repugnant to the constitution are 'null and void'. By the reasoning in the paragraph above, a court is justified in being irrational, based on the precedent that the same court has previously been irrational, so long as the current and past irrationality, resemble each other. It basically makes no sense that a deliveryman's employer should be liable for an assault and rape because the assault and rape occurred while the deliveryman was on the job, and was caused in part by the natural aggravations that come with the job. Similarly it defies common sense and logic, that a laundromat employee's employer should be liable simply because the laundromat employee shot someone while doing his job, in part due to a culpable over-reaction to the stresses of the job. Similarly normal persons would consider a judge to be insane, if the judge concluded that a university dean's employer should be liable if the university dean sexually harassed someone while doing his job as dean, but not liable if the dean sexually harassed someone on his day off.

Paragraph 4: In contrast, the District of Columbia courts have held that tortious conduct is not "incidental" to the performance of authorized duties if the conduct underlying the tort is unrelated to the employee's instructions or job assignment. For example, the court held that a railroad employee was not acting within the scope of his employment when he kicked a taxicab driver while traveling between work sites. It concluded that the employee's action "was neither a direct outgrowth of [his] instructions or job assignment, nor an integral part of the employer's business activity," noting that "nothing in the business of running a railroad . . . makes it likely that an assault will occur between a railroad brakeman and a taxicab driver over the celerity with which the latter will provide a taxicab ride to the former."  (teacher was not acting within scope of employment when he sexually assaulted student because teacher was not then performing teaching responsibilities). And our court, in Haddon , held that a White House electrician was not acting within the scope of his employment when he threatened the White House chef with physical harm. We noted that the electrician's "alleged tort did not arise directly out of his instructions or job assignment as a White House electrician" because "[u]nlike the rape in Lyon and the shooting in Johnson , the electrician's threat did not stem from a dispute over the performance of his work." Id. (emphasis in original). We also observed that "[u]nlike the sexual harassment in Howard University , the electrician was not performing his assigned duties at the time of the incident." Instead, we concluded that his conduct was "closer to the kick in Penn Central and the assault in Boykin " because "[a]s in those cases, the electrician's conduct was completely unrelated to his official responsibilities."

The above paragraph features yet more of what is called 'pretzel logic'. The text of the paragraph shows that the writer sees some kind of "contrast", between a railroad worker kicking a cabbie while on the job on the one hand (the writer considers this to be a case where the employee should be liable), and a laundromat employee aggravated by a customer shooting the customer (the writer considers this to be an example of a case where it is proper to hold the employer liable), because "nothing in the business of running a railroad...makes it likely that an assault will occur between a railroad brakeman and a taxicab driver over the celerity with which the latter will provide a taxicab ride to the former". As if a railroad brakeman kicking a cab driver was abnormal, whereas a laundromat worker shooting an aggravating customer was normal--which is of course obviously, nonsense.

Paragraph 5: The plaintiffs concede that the "torture, threats, physical and psychological abuse inflicted" on them, which were allegedly approved, implemented, supervised and condoned by the defendants, were "intended as interrogation techniques to be used on detainees." In fact, as the district court correctly noted, "the complaint alleges torture and abuse tied exclusively to the plaintiffs' detention in a military prison and to the interrogations conducted therein." Under Ballenger , then, the underlying conduct-here, the detention and interrogation of suspected enemy combatants-is the type of conduct the defendants were employed to engage in. Just as the telephone conversation in Ballenger , the mattress delivery in Lyon and the removal of clothes from the washing machine in Thompson was each part of the employee's job description or assignment, the detention and interrogation of suspected enemy combatants is a central part of the defendants' duties as military officers charged with winning the war on terror. While the plaintiffs challenge the methods the defendants used to perform their duties, the plaintiffs do not allege that the defendants acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence.  Therefore, the alleged tortious conduct was incidental to the defendants' legitimate employment duties.

On the basis of the incredibly illogical reasoning displayed in paragraphs 2, 3 and 4 above, the writer goes on to assert that said illogical reasoning justifies torture of combatants. Above and beyond, and aside from the question of whether the defendants in this case should be forced to pay financial damages for tortures inflicted by their subordinates, the use of such pretzel logic to exonerate those whose subordinates inflict torture, does not bode well for America, to say the least.

Paragraph 6: Section 229(2)(j) of the Restatement (Second) of Agency provides, in pertinent part, that "[i]n determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: . . . whether or not the act is seriously criminal."7 In alleging that the defendants formulated, approved and implemented a policy of torture, the plaintiffs have plainly alleged "seriously criminal" conduct. But criminal conduct is not per se outside the scope of employment. See Restatement (Second) of Agency 231 ("An act may be within the scope of employment although consciously criminal or tortious."); (laundromat employee shot customer over laundry dispute); Lyon , (deliveryman assaulted and raped customer following delivery dispute); Brown v. Argenbright Sec., (rule that sexual assaults are automatically outside scope of employment "too broad").

Here in para 6, the writer, fails to do something that should be very simple to accomplish, which is to distinguish between "seriously criminal", and "consciously criminal". Good luck to you, America, when your judges cannot make such dinstinctions.

Paragraph 7: Citing 229(2)(j) of the Restatement, the plaintiffs argue nonetheless that the serious criminality of the defendants' alleged conduct precluded the district court from holding-as a matter of law-that their conduct was within the scope of their employment. Here, however, the district court apparently defendants' conduct was seriously criminal. (the preceding sentence is ungrammatical and makes no sense, good luck America). (concluding that "torture and inhumane treatment wrought upon captives by their captors" was "'direct outgrowth of the employees' instructions and job assignment'") Accordingly, regardless whether the court or a jury resolves factual disputes in a Westfall Act action,8 nothing would be gained by an evidentiary hearing because the plaintiffs could, at most, simply re-establish that the defendants' conduct was seriously criminal. Where, as here, there are no material facts in dispute, the court may decide a Rule 12(b) motion as a matter of law.  (affirming district's court dismissal of tort claim based on determination that defendant acted within scope of employment).

Paragraph 8: If conduct is seriously criminal, the Restatement explains that it is generally less likely that the conduct comes within the scope of employment:

The fact that the servant intends a crime, especially if the crime is of some magnitude, is considered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result. The master can reasonably anticipate that servants may commit minor crimes in the prosecution of the business, but serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do.

The writer in the above paragraph is like a mindless grade A student, able to regurgitate a paragraph in the Restatement; however, the writer somehow fails to see that the regurgitated paragraph, refutes the writer's own earlier conclusions (paragraphs 2, 3, and 5) that extremely inappropriate and unforeseeable transgressions committed by employees should result in employer liability, simply because they were committed by employees while the employees were on the job, as a result of over-reaction to normal frustrations of interacting with persons such as customers.

Paragraph 9: While it may generally be unexpected that seriously criminal conduct will arise "in the prosecution of the business," here it was foreseeable that conduct that would ordinarily be indisputably "seriously criminal" would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants. As in Lyon , the 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. (laundromat employee acted within scope of employment because "[the employee] had no previous relations with [the victim] which would indicate that the tort was personal" and "[n]o subject unrelated to the [laundry] was ever made a part of the conversation between the men"). Therefore, the allegations of serious criminality do not alter our conclusion that the defendants' conduct was incidental to authorized conduct.9

In the above paragraph, again the writer fails to grasp that although it is foreseeable that seriously criminal conduct would result, it is also foreseeable that seriously criminal conduct will not result, as a result of the employer's instructions.

Paragraph 10: Because the defendants' alleged conduct came within the scope of their office/employment, the three ATS claims were properly "restyled as [claims] against the United States that [are] governed by the [FTCA]." Although the district court did not elaborate-and the parties similarly do not discuss it-we must examine whether the restyled claims against the United States were properly dismissed for lack of jurisdiction. The district court stated only that "[b]ecause the plaintiffs in this case did not proceed against the United States, they did not first present their claim to the appropriate Federal agency" and therefore "the plaintiffs have not exhausted their administrative remedies."

Paragraph 11: The FTCA provides that "[a]n action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing." As noted earlier, supra p. 12, we view the failure to exhaust administrative remedies as jurisdictional.  Accordingly, section 2675(a) required the plaintiffs to file an administrative claim with either the Department of Defense (DoD) or the appropriate military department before bringing suit. (under FTCA, "terms Federal agency and agency . . . include the executive departments [and] the military departments"). Since their release in 2004 at least, the plaintiffs have presumably been able to comply with the exhaustion requirements of FTCA-indeed, they do not argue otherwise. The record is devoid, however, of any suggestion that they complied with any of the procedures governing the filing of an administrative claim with DoD or one of the military departments.10 Accordingly, the district court properly dismissed the three ATS claims for lack of subject matter jurisdiction.11

Must be scary as hell to live in a District of Columbia governed by judges such as the one who wrote this brief.


@2009 David Virgil Hobbs