Opinion
CIVIL 3:22-CV-00884 (JCH)
08-17-2023
VIKY SARAI FLORES BENITEZ, ANA DELMI BENITEZ ALVARADO, JAVIN BENIGNO SANTOS GALVEZ, And J.S.R., a minor, Plaintiffs, v. STEPHEN MILLER, JEFFERSON B. SESSIONS, KIRSTJEN NIELSEN, KEVIN McALEENAN, and UNITED STATES OF AMERICA, Defendants.
RULING ON DEFENDANT'S MOTION TO DISMISS (DOC. NO. 35)
Janet C. Hall United States District Judge
I. INTRODUCTION
Plaintiffs Viky Sarai Flores Benitez (“Ms. Flores Benitez”), Ana Benitez Alvarado (“Ms. Benitez Alvarado”), Javin Benigno Santos Galvez (“Mr. Santos Galvez”), and J.S.R. bring this action pursuant to the Alien Tort Statute (“ATS”) and the Federal Tort Claims Act (“FTCA”). The plaintiffs alleged torture and inhumane treatment as well as several other causes of action arising out of the Trump Administration's now-rescinded Zero Tolerance Policy, which intentionally separated migrant children from their parents.
Before this court is the Motion to Dismiss (“Mot. to Dismiss”) (Doc. No. 35) of defendants Stephen Miller, Jefferson B. Sessions, Kirstjen Nielsen, Kevin McAleenan, and the United States of America's (the “Government”), which the plaintiffs oppose.
See Memorandum of Law in Opposition to Motion to Dismiss (“Pls.' Mem.) (Doc. No. 49).
For the reasons discussed below, the court grants in part and denies in part the Motion to Dismiss.
II. BACKGROUND
A. Statutory and Regulatory Framework for Removal and Detention of Noncitizens
Noncitizens who are present in the United States “without being admitted or paroled” are “inadmissible” and subject to removal. 8 U.S.C. § 1182(a)(6)(A)(i). A noncitizen who enters the United States “at any time or place other than as designated by immigration officers,” or “eludes examination or inspection by immigration officers” is subject to criminal prosecution. Id. § 1325(a). Similarly, a noncitizen who reenters the country after being removed is also subject to criminal sanction, id. § 1326(a), and an earlier removal order is “reinstated from its original date”, id. § 1231(a)(5).
However, a noncitizen may not be removed to a country from which they are seeking asylum due to a threat to the individual's life or freedom. 8 U.S.C. § 1231 (b)(3)(A); 8 C.F.R. §§ 208.16-18. As such, these noncitizens may be eligible for “withholding of removal,” assuming they can establish a “reasonable fear” of persecution or torture. 8 C.F.R. §§ 208.31(a)-(b), (e), 241.8(e). If an asylum officer determines that, following an interview, a noncitizen possess such a “reasonable fear”, the officer must refer the case to an immigration judge, who considers the request for withholding of removal. See 8 C.F.R. § 208.31(e). While a noncitizen awaits removal or a decision regarding removal, the Government “shall arrange for appropriate places of detention....” 8 U.S.C. § 1231(g)(1).
With respect to unaccompanied minors, the Department of Health and Human Services' (“HHS”) Office of Refugee Resettlement (“ORR”) is tasked with “the care and placement of unaccompanied alien children [(“UAC”)] who are in Federal custody by reason of their immigration status[.]” 6 U.S.C. § 279(b)(1)(A). A UAC is defined as any child who: (1) “has no lawful immigration status in the United States”; (2) “has not attained 18 years of age”; and (3) either has “no parent or legal guardian in the United States” or has “no parent or legal guardian in the United States [who] is available to provide care and physical custody.” Id. § 279(g)(2).
Pursuant to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), “[e]xcept in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to [ORR] not later than 72 hours after determining that such child is an unaccompanied alien child.” 8 U.S.C. § 1232(b)(3). Once transferred to ORR, the child “shall not [be] release[d] . . . upon their own recognizance.” 6 U.S.C. § 279(2)(B). In addition, ORR cannot place a child in a person's custody without first determining that “the proposed custodian is capable of providing for the child's physical and mental well-being,” including by verifying the proposed “custodian's identity and relationship to the child, if any, as well as [making] an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. § 1232(c)(3)(A).
Beyond the aforementioned statutory framework, the United States is also bound by a 1996 settlement agreement, known as the Flores Settlement Agreement, which established “the minimum standards for the detention, housing, and release of noncitizen juveniles who are detained by the government, and obliges the government to pursue a general policy favoring release of such juveniles.” Flores v. Sessions, 862 F.3d 863, 866 (9th Cir. 2017) (internal quotation marks and citation omitted). The Flores Settlement Agreement applies to accompanied and unaccompanied minors alike, see Flores v. Lynch, 828 F.3d 898, 905 (9th Cir. 2016), and demands that where detention is necessary, the United States transfer the child to “a non-secure, licensed facility” within “five days of arrest[.]” Id. at 902. The United States must also “make and record the prompt and continuous efforts on its part toward . . . the release of the minor” to specific potential guardians. Flores v. Rosen, 984 F.3d 720, 738 (9th Cir. 2020).
B. “[T]he Human Tragedy” of the Zero Tolerance Policy
Between March and November 2017, defendants Miller, Nielsen, and McAleenan, among other officials, initiated a family separation pilot program in El Paso, Texas. Compl. ¶¶ 102-03. Defendants Nielsen, McAleenan, and other officials then supervised the creation of a December 2017 policy memorandum, which called for parents to “be prosecuted for illegal entry . . . and the minors present with them [to] be placed in [HHS] custody” in an effort to substantially deter migrant families from traveling across the United States' southern border. Id. ¶ 104. As defendant Miller noted in a July 2019 email, “[m]y mantra has persistently been presenting aliens with multiple unsolvable dilemmas to impact their calculus for choosing to make the arduous journey to begin with.” Id. ¶ 143. At another juncture, defendant Miller averred, “I would be happy if not a single refugee foot ever again touched American soil.” Id. ¶ 144.
On April 6, 2018, defendant Sessions issued a memorandum instituting a “Zero Tolerance” Policy for people unlawfully entering the United States. Id. ¶ 107. The Policy mandated the prosecution of all people who crossed the Southwest border for the misdemeanor offense of illegal entry. Id. Prior to the policy change, less than one-third of people apprehended crossing the border were criminally prosecuted. Id. ¶ 109. Furthermore, family separation had not been the norm, with parents only getting separated from their children “if the adult had a criminal history or an outstanding warrant, or if [Customs and Border Protection (CBP)] could not determine whether the adult was the child's parent or guardian.” Id. ¶ 167.
On May 4, 2018, the Department of Homeland Security (“DHS”)-under defendant Neilsen's leadership-instructed Border Patrol officers on how to implement the Zero Tolerance Policy. Id. ¶ 140. In practice, DHS referred parents to the Department of Justice (“DOJ”) for prosecution, with DHS transferring the parent- without their child-to the custody of the U.S. Marshals. Id. ¶ 112. The prosecutions were swift-often concluding in forty-eight hours or less-but DHS refused to reunite families after parents were returned to the agency's custody. Id. ¶¶ 112-13. Instead, in the short period during which the parents were prosecuted, DHS classified the children as UACs and transferred them to the custody of ORR. Id. ¶¶ 113, 134, 136. “In some cases, DHS purposely transferred parents to another facility after DOJ completed a prosecution, in order to separate a family.” Id. ¶ 116.
DHS officials balked at reunification and, in one May 10, 2018 email, ordered CBP “to prevent this from happening” and requested confirmation “that the expectation is that we are NOT to reunite the families and release.” Id. ¶¶ 114-115. Indeed, DHS and HHS had “no procedures or systems” to “track separated families.” Id. ¶ 152. Nor did DHS, and defendants Nielsen and McAleenan, in particular, warn ORR that many more traumatized children would be sent their way, leaving ORR facilities and foster families unable to provide the medical, mental health, and other services that these children desperately needed. Id. ¶ 151.
In February 2018, Immigration and Customs Enforcement (“ICE”) as well as defendants Sessions, Nielsen, and McAleenan were sued in their official capacity over the Government's family separation policy. Id. ¶ 176; Ms. L. v. v. U.S Immigr. & Customs Enf't, 310 F.Supp.3d 1133, 1137 (S.D. Cal. 2018) (“Ms. L. II”). On June 26, 2018, the Ms. L. II Court issued a preliminary injunction enjoining the Zero Tolerance Policy and mandating the commencement of reunification efforts. 310 F.Supp.3d at 1149-50. Additionally, the Ms. L. II Court barred the Government from separating families “absent a determination that the parent is unfit or presents a danger to the child . . . .” Id. at 1149.
C. Separation of Ms. Flores Benitez and Ms. Benitez Alvarado
In May 2018, Ms. Benitez Alvarado fled El Salvador with her then-fourteen-year-old daughter, Ms. Flores Benitez. Compl. ¶ 25. Prior to leaving, the two spent months in hiding after Ms. Benitez Alvarado's domestic partner was murdered by members of the Mara Salvatrucha gang (“MS-13”). Id. Mother and daughter crossed the Rio Grande River on a raft, arriving in the United States around May 13, 2018. Id. ¶ 26. Shortly thereafter, the two were detained by CBP agents and confined in a facility known as the hielera (or “icebox,” in English). Id. ¶¶ 26-27. While in the facility, Ms. Benitez Alvarado and Ms. Flores Benitez were forced to sleep on the floor in frigid temperatures-with only aluminum blankets to keep them warm-and denied the opportunity to bathe. Id. ¶ 27. Despite being apprehended and detained together, on May 15, 2018, DHS processed Ms. Flores Benitez separately from her mother and classified her as an “unaccompanied juvenile”, as required by the Zero Tolerance Policy. Id. ¶ 28.
On or about May 16, 2018, immigration officers told Ms. Benitez Alvarado that they were briefly taking her daughter to shower-her first opportunity to do so since being detained at the hielera-but this was merely a ruse to separate the two. Id. ¶¶ 30-32. Ms. Benitez Alvarado remained detained and distressed, in Texas, while her daughter was transferred to the custody of ORR at the Noank Community Support Services shelter in Groton, Connecticut. Id. ¶¶ 34, 45. When Ms. Benitez Alvarado asked about her daughter's whereabouts, immigration officers responded in different ways: some said that they did not know where she was or that she was in Houston, and others mocked her distress and insinuated that Ms. Flores Benitez was not her daughter. Id. ¶¶ 32, 47, 49.
Immigration officers attempted to capitalize on Ms. Benitez Alvarado's anguish over her daughter by coercing her into waiving her rights to seek asylum in the United States. Id. ¶ 50-53. After being told that she would be detained without her daughter for months if she did not sign away her rights, Ms. Benitez Alvarado finally relented and agreed to be deported. Id. ¶¶ 50-52.
In Connecticut, shelter staff were unable to interview Ms. Flores Benitez upon arrival because she could not stop crying. Id. ¶ 35. For nearly one month, no one was able to tell her where her mother was. Id. ¶ 37. On or about June 13, 2018, Noank staff finally tracked Ms. Benitez Alvarado down to a facility in Encinal, Texas. Id. ¶ 38. Eight days after that, Ms. Flores Benitez had her first contact with her mother-a ten-minute phone call during which both parent and child were too distraught to speak. Id. ¶ 39, 54.
D. Separation of J.S.R. and Mr. Santos Galvez
Around April 2018, Mr. Santos Galvez and his then-nine-year-old son J.S.R. fled Honduras. Id. ¶ 59. Their lives were in jeopardy as a result of Mr. Santos Galvez's efforts in support of the National Party of Honduras. Id. ¶ 58. The two traveled north for months and attempted to make a new life in Mexico, but ultimately felt unsafe there as well and set out for the United States. Id. ¶ 61-62. On June 11, 2018, nearly a month after their co-plaintiffs, Mr. Santos Galvez and his son crossed the Rio Grande on an inflatable raft. Id. ¶ 62. The two were arrested by immigration officers shortly after crossing the Southern border. Id. ¶ 63.
Much like their co-plaintiffs, Mr. Santos Galvez and his son were initially detained in the frigid cold hielera. Id. ¶ 64. Agents gave Mr. Santos Galvez two aluminum blankets and a mattress topper for him to share with his son, but he gave everything to J.S.R. Id. ¶ 65. To this day, J.S.R. has memories of his father shivering and sobbing in the windowless facility. Id. After three days, immigration officers made Mr. Santos Galvez step outside the facility while J.S.R. was asleep. Id. ¶ 66. Mr. Santos Galvez did not want to leave his son behind, but he was assured that he would see J.S.R. again shortly. Id. However, once outside, officers kept him from returning to the hielera and told Mr. Santos Galvez that he had seen his son for the final time. Id. ¶ 67. Mr. Santos Galvez continued to be detained in different facilities throughout Texas, but four days later-on approximately June 16, 2018-J.S.R. was transferred to the custody of ORR at the Noank Community Support Services in Groton. Id. ¶ 68, 71,85, 90, 93.
Following the separation, Mr. Santos Galvez admitted to entering the country without permission-after previously being deported in 2007-in criminal court. Id. ¶ 56, 87. Shortly thereafter, at the Port Isabel Service Detention Center in Los Fresnos, Texas, an immigration officer told Mr. Santos Galvez that he had entered the United States alone and would be deported. Id. ¶ 87. Mr. Santos Galvez protested that he had arrived with his son, but the officer was emphatic that the documentation suggested otherwise. Id. It was only when Mr. Santos Galvez showed the officer a card given to J.S.R. listing the boy's possessions at the time of his arrest-a card that Mr. Santos Galvez had kept hidden in case officers tried to deny his relationship to his son-that the officer conceded an error had been made. Id. ¶ 89. Still, officers would not tell Mr. Santos Galvez where his son was or how he was doing. Id. ¶ 90.
At the same time in Connecticut, a legal services attorney tried in vain to help J.S.R. locate his father. Id. ¶ 72. On June 27, 2018, Mr. Santos Galvez's attorneys tracked down J.S.R. and arranged a brief video call between the father and son. Id. ¶¶ 73, 94. Mr. Santos Galvez was relieved to finally see his son, but heartbroken over the dramatic transformation in J.S.R.'s demeanor as a result of their time apart. Id. ¶ 94.
E. Reunification of the Plaintiffs
On July 2, 2018, Ms. Flores Benitez and J.S.R. filed Petitions for Habeas Corpus in the District of Connecticut. Id. ¶ 95; J.S.R. by & through J.S.G. v. Sessions, 330 F.Supp.3d 731, 736 (D. Conn. 2018). The Complaint of each child plaintiff sought release from detention as well as reunification with their parents. Compl. ¶ 95; J.S.R., 330 F.Supp.3d at 733. On July 13, 2018, following briefing and an evidentiary hearing, Judge Victor A. Bolden of the District of Connecticut concluded that “the constitutional rights of J.S.R. and V.F.B. have been violated, and that irreparable harm has occurred as a result[.]” Compl. ¶ 96; J.S.R., 330 F.Supp.3d at 733. Accordingly, Judge Bolden granted, in part, the motion for a preliminary injunction and ordered the Government to provide “relief directed towards the effects of the constitutional violation suffered by these minor children, namely trauma or more precisely, Post-Traumatic Stress Disorder (“PTSD”)[.]” J.S.R., 330 F.Supp.3d at 733. Soon afterwards, both children were released from DHS custody and reunited with their parents. Compl. ¶ 98.
F. Procedural History
On July 13, 2022, the plaintiffs filed the Complaint. See Compl. The plaintiffs bring two claims. Id. ¶¶ 200-39. In Claim One, the plaintiffs contend that the conduct of the individual defendants amounts to torture and inhumane treatment pursuant to the ATS. Id. ¶¶ 200-14; 28 U.S.C. § 1350. In Claim Two, the plaintiffs assert five different FTCA causes of action under either Texas and/or Connecticut law, including (1) intentional infliction of emotional distress, (2) false imprisonment, (3) negligent infliction of emotional distress, (4) negligence, and (5) abuse of process. Compl. ¶¶ 215-239.
On October 28, 2022, the Government moved to dismiss the action in its entirety for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). See Mot. to Dismiss; Memorandum of Law in Support of Motion to Dismiss (“Def.'s Mem.”) (Doc. No. 35-1); Reply Memorandum in Support of Motion to Dismiss (“Def.'s Reply”) (Doc. No. 57). The plaintiffs oppose the Government's Motion, see Pls.'s Mem., and, on December 19, 2022, they were joined in their opposition-with consent of this court-by amici curiae. See Amicus Curiae in Support of Plaintiff's Opposition to Motion to Dismiss (“Amicus Brief”) (Doc. No. 50). The court held oral argument on the Motion on August 3, 2023. See Notice (ECF No. 81).
III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of proving the existence of subject matter jurisdiction. Makarova, 201 F.3d at 113. In determining whether the plaintiff has met this burden, the court must accept as true all factual allegations in a complaint and draw all reasonable inferences in favor of the plaintiff. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016); Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). The court may also rely on evidence outside a complaint in deciding a Rule 12(b)(1) motion. Makarova, 201 F.3d at 113.
To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Reviewing a motion to dismiss under Rule 12(b)(6), the court liberally construes the claims, accepts the factual allegations in a Complaint as true, and draws all reasonable inferences in the nonmovant's favor. See La Liberte v. Reid, 966 F.3d 79, 85 (2d Cir. 2020). However, the court does not credit legal conclusions or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678.
IV. DISCUSSION
The Government has moved to dismiss the Complaint in its entirety based on the plaintiffs' lack of subject matter jurisdiction and failure to state a claim. See Def.'s Mem. at 2. This court begins its analysis with the plaintiffs' ATS claims, before turning to the FTCA claims.
A. ATS Claims
In moving to dismiss, the Government argues that the individual defendants must be substituted for the United States pursuant to the Westfall Act, 28 U.S.C. § 2679, and that the ATS claims are then barred by sovereign immunity. Def.'s Mem. at 13-15. The plaintiffs counter that their claims under the ATS are subject to the statutory actions exception to the Westfall Act. Pls.' Mem. at 42-49. In the alternative, the plaintiffs aver that sovereign immunity does not bar their claims under the ATS. Pls.' Mem. at 49-54.
The ATS, also known as the Alien Tort Claims Act, provides, “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Enacted as part of the Judiciary Act of 1789, see Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004), the ATS is solely a jurisdictional statute and creates “no new causes of action,” id. at 724; see also Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013) (“[The ATS] does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.”); Nahl v. Jaoude, 968 F.3d 173, 179 (2d Cir. 2020) (“The ATS is a jurisdictional statute, creating no new cause of action in its own right but empowering courts to hear cases brought by foreign nationals based on violations of international law.”). Instead, the “very limited category” of claims available under the ATS are “defined by the law of nations and recognized at common law.” Sosa, 542 U.S. at 712.
1. Statutory Exception to Westfall Act is Not Satisfied
Passed in the wake of the U.S. Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988), the Federal Employees Liability and Tort Compensation Act (commonly known as the “Westfall Act”) “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007); 28 U.S.C. § 2679(b)(1). However, the Westfall Act preserves claims against federal officers “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B).
Both the D.C. Circuit and the Ninth Circuit Courts of Appeals have determined that the statutory exception to the Westfall Act is not satisfied by claims brought pursuant to the ATS, as “any claim brought under the ATS alleges a violation of the law of nations and the common law, not of the ATS itself.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011); Alvarez-Machain v. United States, 331 F.3d 604, 631-32 (9th Cir. 2003) (“[A] claim under the [ATS] is based on a violation of international law, not of the [ATS] itself.”) (internal quotation marks and citation omitted), rev'd on other grounds sub nom. Sosa, 542 U.S. 692. To reach this conclusion, both Circuit Courts relied on the U.S. Supreme Court's opinion in United States v. Smith, 499 U.S. 160 (1991). See Ali, 649 F.3d at 775-76; Alvarez-Machain, 331 F.3d at 631-32. In Smith, the Government attempted to substitute itself as the defendant, pursuant to the recently enacted Westfall Act, in a negligence suit brought against a U.S. military physician. 499 U.S. at 162-163. The case did not involve the ATS, but rather centered on the Gonzalez Act, which, like the Westfall Act, was a grant of immunity to federal employees for torts committed within the scope of their work. Id. The plaintiffs argued that the Gonzalez Act authorized their claim and that, because the Gonzalez Act allowed negligence suits against military doctors in certain situations, such negligence claims were in fact a violation of the statute. Id. at 174. The Supreme Court rejected that contention, holding that “[n]othing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or foreign law does not ‘violate' the Gonzalez Act.” Id. at 174. Because the Court determined that the Gonzalez Act was not violated, it concluded that the statutory exception to the Westfall Act was not satisfied. Id.
Based on this reasoning in Smith as well as the fact that the ATS is purely jurisdictional, both the D.C. Circuit and the Ninth Circuit concluded that nothing in the statute “imposes any obligations or duties of care upon” the defendants. Id.; Ali, 649 F.3d at 776; Alvarez-Machain, 331 F.3d at 632. This determination was further buttressed by the Supreme Court's later acknowledgement in Kiobel that the ATS “does not directly regulate conduct or afford relief.” 569 U.S. at 116. For these reasons, the D.C. Circuit and the Ninth Circuit concluded that the Westfall exception does not apply to claims brought under the ATS and that the United States should be substituted for the individual defendants. See Ali, 649 F.3d at 776-78; Alvarez-Machain, 331 F.3d at 631-32.
In arguing against such a conclusion here, the plaintiffs ask the court to side with the position of the Ali dissent, see Pls.' Mem. at 44, which posits that Smith was inapposite, as the ATS “is a statute enabling the federal courts to impose liability-not limit liability. Because [the ATS] expressly incorporates the ‘law of nations,' it is a statute that can be violated.” Ali, 649 F.3d at 790 (Edwards, J., dissenting). Notwithstanding the fact that the Gonzalez Act and the ATS have different purposes, this court agrees with the majority opinions in Alvarez-Machain and Ali that the reasoning in Smith prevents the Westfall Act exception from applying here because the ATS does not explicitly incorporate the law of nations. Alvarez- Machain, 331 F.3d at 632; Ali, 649 F.3d at 776-78. Rather the plaintiffs' ATS claims in this case allege a violation of the law of nations or a treaty of the United States, not the ATS. See also Nahl, 968 F.3d at 179 (reiterating that the ATS is purely a “jurisdictional statute, creating no new cause of action in its own right but empowering courts to hear cases brought by foreign nationals based on violations of international law.”). Accordingly, the statutory exception to the Westfall Act is not satisfied and the United States is properly substituted for the individual defendants in the ATS claims.
2. Claims Do Not Fall Outside the Defendants' Scope of Employment The plaintiffs also contest the substitution of the United States in place of the individual defendants by arguing that “the Westfall Act does not permit substitution of government officials who commit intentional jus cogens violations.” Pls.' Mem. at 46. In response, the Government avers that alleged violations of jus cogens norms “do not per se fall outside the scope of employment under the Westfall Act.” Def.'s Reply at 12.