On November 18, 2005, the plaintiff, a Marine Lance Corporal, and seven other Marines engaged in a clash with Iraqis in Haditha, Iraq.  Sharratt v. Murtha, No. 10-2225 (3d Cir. July 14, 2011).  This clash, referred to as the “Haditha incident,” resulted in the deaths of fifteen Iraqis.

In May 2006, United States Congressman John Murtha, who represented Pennsylvania’s 12th Congressional District and was the then-Ranking Member of the House Appropriations Subcommittee on Defense, made several statements to the national media about the Haditha incident.  (Congressman Murtha died on February 8, 2010, during the pendency of this litigation.)  For example, he claimed that the Marines overreacted because of the pressure that was on them and that they killed innocent civilians.  He also compared the Haditha incident to My Lai, an incident from the Vietnam War in which citizens were killed by United States soldiers.  Murtha’s statements were reported in several newspapers and were broadcast on national television and radio stations.

In December 2006, the U. S. Military charged the plaintiff with three counts of unpremeditated murder.  After a hearing, the charges were dismissed for lack of evidence and the plaintiff was exonerated.  Six of the seven other Marines who were involved in the incident were similarly absolved of wrongdoing; charges against the seventh Marine are still pending.

In April 2009, the plaintiff filed an amended complaint in the United States District Court for the Western District of Pennsylvania against Murtha.  The first three counts included Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claims.  Specifically, the plaintiff alleged that his Fifth Amendment rights to due process and equal protection were violated, as was his right to a fair trial and a presumption of innocence under the Sixth Amendment.  The plaintiff also asserted common-law tort claims.

The United States moved to substitute itself as the sole defendant on the plaintiff’s common-law claims in accord with the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”).  Pursuant to the Westfall Act, the Department of Justice certified that Murtha was acting within the scope of his employment when he made the statements that gave rise to the lawsuit.  Subsequently, Murtha and the United States moved to dismiss the plaintiff’s complaint.  The District Court dismissed the complaint, ruling that:  1) the Bivens claims failed because Murtha was entitled to qualified immunity and, alternatively, that the claims were time-barred; and 2) the common-law tort claims against the United States were procedurally defective.  The Third Circuit affirmed.

As to the plaintiff’s constitutional arguments, the plaintiff chose to not appeal the Fifth Amendment claims; thus, the court only had to consider the plaintiff’s Sixth Amendment Bivens claims.  A plaintiff asserting a Bivens claim seeks to recover monetary damages from the federal government for injuries caused by a violation of his or her constitutional rights.  In the Bivens case, a violation of the Fourth Amendment was at issue, and the Bivens holding has since been applied to allow for claims under the Fifth Amendment and the Eighth Amendment.  However, the Supreme Court has not extended Bivens claims to new contexts; accordingly, the Third Circuit expressed its doubt “that a purported violation of Sixth Amendment rights could be remedied under Bivens.”  Nonetheless, the court explained that even if a violation of the Sixth Amendment could serve as the basis of a Bivens claim, the plaintiff could not overcome Murtha’s qualified immunity defense.  In that regard, the Third Circuit stressed that to establish a Sixth Amendment violation the plaintiff had to prove that the government’s conduct had an adverse impact on the criminal proceedings, which was a burden that the plaintiff could not meet because the criminal charges against him had been dismissed.

With respect to the plaintiff’s argument that he had rebutted the government’s Westfall Certification by proving that Murtha acted outside the scope of his employment, the Third Circuit noted that the D.C. Circuit had rejected similar claims in a lawsuit filed by one of the plaintiff’s Marine colleagues against Murtha.  Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009).  After reviewing the plaintiff’s attempts to distinguish that case, the Third Circuit concluded that he failed to establish that Murtha’s statements exceeded the scope of his employment and held that he failed to rebut the Westfall certification.  Because the United States was substituted into the case as a defendant for the plaintiff’s common law claims based on the Westfall Certification, the “District Court was obligated to dismiss those claims for lack of jurisdiction.”  Specifically, the Third Circuit explained that the District Court correctly dismissed the plaintiff’s common-law claims because he had failed to exhaust his administrative remedies under the Federal Tort Claim Act.