Friday, November 21, 2025
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Lawyer’s Suit Over Judge Allegedly Threatening to Take License Rightly Tossed—Ninth Circuit
Opinion Says Slander Claim Over Immigration Jurist’s Purported Statement Is Precluded by Sovereign Immunity, Rejects Due Process Challenge
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a San Diego attorney’s complaint asserting a claim for slander relating to an immigration judge allegedly saying in front of court staff that she would “take [his] license to practice law”—a statement he characterizes as a false accusation of unethical behavior—was properly dismissed as barred by sovereign immunity.
The case addresses the interplay between the Westfall Act, codified at 28 U.S.C. §2679, which provides that the U.S. may be substituted in as a defendant when federal employees are sued for actions taken in the course of their employment, and the Federal Tort Claims Act (“FTCA”), which, subject to certain exceptions, creates a carve-out from sovereign immunity for official misdeeds.
In a memorandum opinion, signed by Circuit Judges Kim M. Wardlaw, Eric D. Miller, and Senior Circuit Judge Marsha S. Berzon, the court said that the attorney, solo practitioner Leroy Siddell, failed to allege sufficient facts to establish that the judge’s purported statement was made outside the scope of her duties.
Under those circumstances, they concluded that the U.S. was properly substituted in as a defendant and sovereign immunity applied because “slander” is exempted from the FTCA’s waiver.
Complaint Filed
Siddell, acting on his own behalf, filed the complaint against U.S. Immigration Judge Valerie Burch in San Diego Superior Court on March 29 of last year. He asserted a single cause of action for slander per se under Civil Code §46 and alleged:
“Plaintiff is informed and believes that on January 31, 2024 at Otay Mesa Detention Facility, Defendant made the following defamatory statement about, of, and concerning Plaintiff: She would take my license to practice law which implied that I had engaged in unethical and dishonest behavior. Defendant made said statement in person to LeRoy George Siddell in the presence of five witnesses whose names are unknown to plaintiff but known to Defendant because they are her court personnel: (Court Clerk, Spanish Translator, Court Bailiff and Government Attorney).”
He continued:
“All persons present reasonably understood that the statement referred to Plaintiff and reasonably understood them to mean that Plaintiff was unethical and that she intended take his law license away. Plaintiff alleges that Defendant has no valid claim to Judicial Immunity as the Defamatory Statements were made after the proceedings were adjourned and a tape recording of the case was completed.”
Federal Employee Certification
On May 23, 2024, Burch removed the action to the U.S. District Court for the Southern District of California under the FTCA after the local U.S. Attorney’s Office certified that she was a federal employee acting within the scope of her employment when she allegedly made the statement at issue. The following day, the U.S. filed a notice to substitute itself as a defendant pursuant to the Westfall Act.
District Court Judge Roger Benitez granted the substitution and dismissed Burch from the action. Benitez recused himself that July after Siddell filed a petition for a writ of error coram nobis, alleging that the substitution robbed him of due process.
In the filing, he asserted that the “entire concept of Sovereign Immunity….is contrary to the U.S. Constitution” and wrote:
“Under the Government’s analysis—Judge Burch could shoot Plaintiff dead during work hours and have no civil liability. Justice Oliver Wendell Homes once famously said, ‘If the law says that then the law is an ass.’ ”
Benitez recused himself and the case was assigned to Chief Judge Dana M. Sabraw, who granted the government’s motion to dismiss, without leave to amend in September 2024, saying:
“Plaintiff’s slander per se claim falls under the intentional torts exception to the FTCA’s waiver of sovereign immunity because it arises out of one of the enumerated [excluded] torts….”
Rejecting Siddell’s argument that the Westfall Act does not permit the substitution because Burch was not acting within the scope of her employment when she allegedly defamed him, Wardlaw, Miller, and Berzon pointed out that the attorney “forfeited this issue by not raising it in the district court” and declared:
“The argument would be meritless in any event. Siddell did not produce any evidence refuting the Attorney General’s scope-of-employment certification, so there was no basis for the district court to reinstate Burch as the defendant….Nor would Siddell have been entitled to an evidentiary hearing on the matter…because he did not ‘allege sufficient facts that, taken as true, would establish that the defendant’s actions exceeded the scope of [her] employment.’ ”
They added that Siddell’s assertion that “slander is categorically outside the scope” of a judge’s duty is contrary to settled case law.
The panel concluded:
“[T]he Westfall Act precludes suit against individual officials acting within the scope of their employment even when the FTCA does not provide a remedy against the federal government. As a result, ‘[b]ecause the Federal Tort Claims Act excepts from the waiver of sovereign immunity “libel” and “slander,” treating [a plaintiff’s] defamation claims as within the scope of employment eliminates them.’ ”
Due Process Challenge
As to the plaintiff’s contention that the Westfall Act violates the Fifth Amendment by depriving him of a fundamental “right to a good reputation and to be free of defamation” without due process, they opined:
“Even if properly presented, this contention would be meritless….Although a public official’s defamatory statement can violate due process if accompanied by the denial of ‘some more tangible interests such as employment’ or ‘a right or status previously recognized by state law,’…Siddell does not contend that he was denied employment or lost some legal status.”
The jurists affirmed the dismissal, saying:
“We agree with the district court…and hold that sovereign immunity bars Siddell’s claim.”
The case is Siddell v. U.S., 24-5915.
Siddell was sanctioned bon Oct. 2 y Div. One of the Fourth District Court of Appeal for having cited fabricated case law in an appellate filing, an error he attributed to his failure to “verify cases provided to [him] by artificial intelligence.” The October order required him to pay $1,500 as a monetary sanction to “reimburse the court for a small portion of the time and resources expended on this issue.”
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