author: GRABER, Circuit Judge:

text:
    Sundus Shaker SALEH, on behalf of herself and those similarly situated, Plaintiff-Appellant, v. George W. BUSH; Richard B. Cheney; Donald Rumsfeld; Condoleezza Rice; Colin Powell; Paul Wolfowitz; Does 1-10, inclusive; and the United States of America, Defendants-Appellees.
    No. 15-15098
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 12, 2016 San Francisco, California
    Filed February 10, 2017

      Dave Inder Comar (argued), Comar Law, San Francisco, California, for Plaintiff-Appellant.
    Patrick G. Nemeroff (argued) and Matthew M. Collette, Attorneys, Appellate Staff; Melinda Haag, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appel-lees.
    Jerome Paul Wallingford, San Diego, California, for Amicus Curiae Lawyers for International Law.
    Rajeev E. Ananda, New York, New York, for Amicus Curiae Planethood Foundation.
    Before: SUSAN P. GRABER and ANDREW D. HURWITZ, Circuit Judges, and RICHARD F. BOULWARE, District Judge.

       The Honorable Richard F. Boulware, United States District Judge for the District of Nevada, sitting by designation.

   OPINION

GRABER, Circuit Judge:

Plaintiff Sundus Shaker Saleh sues several individuals who served as high-ranking officials in the administration of President George W. Bush. Plaintiff claims that the former officials conspired to engage in, and did engage in, a war of aggression against Iraq and that, in doing so, they violated the “law of nations” within the meaning of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. The district court substituted the United States for the officials as the sole defendant pursuant to the West-fall Act, 28 U.S.C. § 2679(d)(1), and then dismissed the case because Plaintiff had not exhausted her administrative remedies as required by the Federal Tort Claims Act (“FTCA”). Plaintiff argues that substitution of the United States was improper because the former officials are not entitled to official immunity. Because we conclude that the individual defendants are entitled to official immunity under the Westfall Act and that the United States properly was substituted as the sole defendant, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2003, Kurdish Army troops forced Plaintiff and her family to leave their home in Jalawla, Iraq, and flee to Baghdad. The troops, who were aligned with the United States, were taking part in what has become known as the Iraq War, a military action that officially began on March 19, 2003, but that, Plaintiff claims, Defendants had been planning for years. Plaintiff endured many hardships in Baghdad. Eventually she was forced to leave Iraq and move to Jordan. In this case, she seeks to represent “a class of persons consisting of all innocent Iraqi civilians who, through no fault of their own, suffered damage” from the Iraq War.

Plaintiff claims that Defendants Cheney, Rumsfeld, and Wolfowitz began advocating for an invasion of Iraq and for the removal of Iraqi President Saddam Hussein from power as early as 1997. In January 1998, Rumsfeld and Wolfowitz sent President Clinton a letter urging him to “implement a ‘strategy for removing Saddam’s regime from power,’ which included a ‘willingness to undertake military action as diplomacy is clearly failing.’ ” (Emphasis in complaint.) They sent a similar letter to Speaker of the House Newt Gingrich and Senate Majority Leader Trent Lott later that year.

Defendant Bush became President in January 2001, and appointed the other Defendants to high-ranking positions within his administration. According to Plaintiff, Defendants almost immediately began to discuss a possible invasion and occupation of Iraq, with Defendant Rumsfeld stating at an early National Security Council meeting that “what we really want to think about is going after Saddam.” As then-Treasury Secretary Paul O’Neill later put it:

From the start, we were building the case against Hussein and looking at how we could take him out and change Iraq into a new country. And, if we did that, it would solve everything. It was all about finding a way to do it. That was the tone of it. The President saying, “Fine. Go find me a way to do this.”

(Emphasis in complaint.)

According to Plaintiff, the September 11, 2001 attacks provided Defendants with a pretext to launch an invasion of Iraq. Defendants Wolfowitz and Rumsfeld “openly pushed for war against Iraq” on the day of the attacks, despite the lack of evidence tying Iraq to the attacks. Defendant Bush was less eager to take action without evidence of a link between Iraq and the September 11 attackers. He asked various officials to “go back over everything” to try to find evidence that Saddam Hussein-had been involved with A1 Qaeda. Over the course of the next year or so, Defendants began planning for the invasion of Iraq, even as they struggled to find such a link.

Beginning around August 2002, Defendants allegedly mounted a coordinated campaign to convince “the public, the Congress and the allies of the need to confront the threat from Saddam Hussein.” As part of that campaign, Defendants and others “continually used fabricated intelligence from unreliable sources in order to prep the public for an invasion of Iraq.” For instance, Defendant Bush claimed in his 2003 State of the Union address that Iraq had tried to “obtain large quantities of uranium from Africa,” despite the fact that this claim was “unconfirmed and highly unlikely.” During that time period, Defendants also continued to plan for an invasion of Iraq. According to Plaintiff, Defendants' were committed to the invasion whether or not the United Nations approved of the action and whether or not United Nations inspectors uncovered evidence that Iraq was developing nuclear weapons.

On March 7, 2003, International Atomic Energy Agency Director General Mohamed ElBaradei “reported to the UN Security Council that there was no indication ‘of resumed nuclear activities,’ ‘that Iraq has attempted to import uranium,’ [or] ‘that Iraq has attempted to import aluminum tubes for use in centrifuge enrichment.’ ” Nonetheless, Jess than two weeks later, the United States invaded Iraq. Congress authorized the use of military force to “defend the national security of the United States against the continuing threat posed by Iraq.” Authorization for Use of Military Force Against Iraq Reso- ' lution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (“Authorization for Use of Military Force”), but Defendants did not secure United Nations authorization for the war.

Plaintiff brought this action in 2013. She alleges that Defendants’ conduct in planning and executing the Iraq War amounted to the “crime of aggression” and a' conspiracy to commit the crime of aggression, which she claims was a violation of the “law of nations” within the meaning of the ATS. After she filed an amended complaint in September 2013, the United States filed a certification that Defendants had been “acting within the scope of their federal office or employment at the time of the incidents [at issue] in this matter.” Under 28 U.S.C. § 2679(d)(1), the United States was then substituted as the sole defendant. Thereafter, the amended complaint was dismissed because Plaintiff had failed to exhaust her administrative remedies as required by the FTCA, 28 U.S.C. § 2675(a). Plaintiff filed a second amended complaint. The United States again filed a “scope certification,” and the district court again substituted the United States and dismissed the action, this time with prejudice. The district court also denied Plaintiffs motion for an evidentiary hearing to challenge the scope certification. Plaintiff timely appeals both the dismissal of the action and the denial of her motion for an evidentiary hearing.

STANDARDS OF REVIEW

“We review the dismissal [for lack of subject matter jurisdiction] and the denial of the challenge to certification de novo.... We review the decision whether to conduct an evidentiary hearing for abuse of discretion.” McLachlan v. Bell, 261 F.3d 908, 910 (9th Cir. 2001) (footnote omitted).

DISCUSSION

The Alien Tort Statute grants “district courts ... 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. Not every violation of the law of nations gives rise to a claim that can be brought under the ATS. Rather, “any claim based on the present-day law of nations [must] rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” that the drafters of the ATS had in mind — “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The set of “ATS torts” — violations of norms of international law giving rise to claims cognizable under the ATS — is, therefore, not frozen in time, but the Supreme Court has instructed us to be wary of adding to that set. See id. at 729, 124 S.Ct. 2739 (“[T]he door to further independent judicial recognition of actionable international norms ... is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”). Perhaps not surprisingly, only a few new ATS torts have been recognized by federal appellate courts since Sosa was decided. See, e.g., Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014) (holding that a violation of the “prohibition against slavery” gives rise to a claim under the ATS); Abdullahi v. Pfizer, Inc., 562 F.3d 163, 169 (2d Cir. 2009) (concluding that a violation of the “prohibition ... against nonconsensual human medical experimentation” is an ATS tort).

Plaintiff asks us to recognize a violation of the norm against aggression as an ATS tort. We need not decide that issue. Assuming, without deciding, that engaging in aggression constitutes an ATS tort, Plaintiff’s claims against Defendants nonetheless fail, because Congress has granted Defendants official immunity from those claims. The only proper defendant in this case is therefore the United States, and Plaintiff’s claims against the United States are barred because Plaintiff failed to exhaust administrative remedies as-required by the FTCA.

We first address the question whether Defendants are entitled to immunity under the terms of the Westfall Act. We then address Plaintiffs argument that, even if the Westfall Act purports to confer immunity on Defendants, immunity cannot attach because Plaintiff has alleged that Defendants violated a jus cogens norm of international law.

A. Defendants’ Official Immunity Under the Westfall Act

“The concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity. While the latter doctrine — that the ‘King can do no wrong’ — did not protect all government officers from personal liability, the common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability.” Scheuer v. Rhodes, 416 U.S. 232, 239, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “[T]he scope of absolute official immunity afforded federal employees is a matter of federal law, to be formulated by the courts • in the absence of legislative action by Congress.” Westfall v. Erwin, 484 U.S. 292, 295, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988) (internal quotation marks omitted), superseded on other grounds by Pub. L. No. 100-694, 102 Stat. 4563 (1988), codified at 28 U.S.C. § 2679(d). “The purpose of such official immunity is not to protect an erring official, but to insulate the decisionmaking process from the harassment of prospective litigation.” Id.

The Westfall Act, which was enacted in response to the Supreme Court’s decision in Westfall, “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, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). The immunity extends to both “negligent” and “wrongful” “act[s] or omission[s] of any employee ... acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1). The Act does not set out a test to determine whether an employee was “acting within the scope of his office or employment”; rather, Congress intended that courts would apply “the principles of respondeat superior of the state in which the alleged tort occurred” in analyzing the scope-of-employment issue. Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 876 (9th Cir. 1992). The same analysis was employed before passage of the Westfall Act to determine whether the United States could be liable for an employee’s torts under the FTCA. Id. at 875-76.

The Westfall Act provides a procedure by which the federal government determines whether an employee is entitled to immunity. When a current or former federal employee is sued and the employee believes that he is entitled to official immunity, he is instructed to “deliver ... all process served upon him ... to his immediate supervisor” or other designated official, who then “furnish[es] copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.” 28 U.S.C. § 2679(c). The Attorney General then determines whether “the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” Id. § 2679(d)(1). If so, the Attorney General issues a “scope certification,” which “transforms an action against an individual federal employee into one against the United States.” Hui v. Castaneda, 559 U.S. 799, 810, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010). The “United States shall be substituted as the party defendant,” 28 U.S.C. § 2679(d)(1), and the employee is released from any liability: “The remedy against the United States ... is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.” Id. § 2679(b)(1).

The Westfall Act does not provide immunity to an official from a suit “brought for a violation of the Constitution of the United States.” Id. § 2679(b)(2)(A). That preserves claims against federal officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Hui, 559 U.S. at 807, 130 S.Ct. 1845. The Act also does not provide immunity from a suit “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). Neither exception applies here.

But Plaintiff argues that Defendants’ actions were not taken within the scope of their employment and that, therefore, they are not entitled to immunity under the Westfall Act in the first place. Plaintiffs argument embraces two distinct theories. The first theory is that Defendants in this case acted outside the scope of their employment because they (1) started planning the attack on Iraq before they ever took office, (2) attacked Iraq out of personal motives, and (3) were not employed to instigate an unlawful war. The second theory is that the scope-of-employment inquiry under the Westfall Act must be conducted with an eye toward the United States’ treaty obligations. That is, the statute should not be construed to allow an act to be deemed “official” when the United States has entered into treaties condemning that same act. We will address those two theories in turn, and we will then address Plaintiffs challenge to the district court’s denial of her request for an eviden-tiary hearing concerning the scope certification.

1. The Scope-of-Employment Test

“The Attorney General’s decision regarding scope of employment certification [under the Westfall Act] is conclusive unless challenged. Accordingly, the party seeking review bears the burden of presenting evidence and disproving the Attorney General’s decision to grant or deny scope of employment certification by a preponderance of the evidence.” Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (per curiam) (citation and footnote omitted). “To rebut the [scope] certification ..., a plaintiff must ‘allege sufficient facts that, taken as true, would establish that the defendant’s actions exceeded the scope of his employment.’ ” Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (brackets omitted) (quoting Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003)). “[W]here a plaintiff fails to allege sufficient facts to rebut the certification, the United States must be substituted as the defendant....” Id.

As noted above, when determining whether a federal officer’s actions fall within “the scope of his office or employment” for purposes of the Westfall Act, we apply “the principles of respondeat superi- or of the state in which the alleged tort occurred.” Pelletier, 968 F.2d at 876. We agree with the parties that the respondeat superior law of the District of Columbia applies in this case.

District of Columbia courts routinely “look[ ] to the Restatement (Second) of Agency” in determining whether an employee’s actions fall within the scope of employment. Rasul v. Myers, 512 F.3d 644, 655 (D.C. Cir. 2008) (internal quotation marks omitted), vacated, 555 U.S. 1083, 129 S.Ct. 763, 172 L.Ed.2d 753 (2008), reinstated in relevant part, 563 F.3d 527, 528-29 (D.C. Cir. 2009) (per curiam). “The Restatement provides [that]: ‘(1) Conduct 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. (2) 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.’ ” Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006) (per curiam) (quoting Restatement (Second) of Agency § 228 (1958)). “District of Columbia law liberally construes the doctrine of respondeat superior, at least with respect to the first prong of the Restatement.” Kashin v. Kent, 457 F.3d 1033, 1039 (9th Cir. 2006) (ellipses omitted) (quoting Stokes, 327 F.3d at 1216). “The test for scope of employment is an objective one, based on all the facts and circumstances.” Ballenger, 444 F.3d at 663 (brackets omitted) (quoting Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. Cir. 1986)).

Plaintiff claims that Defendants (particularly Wolfowitz and Rumsfeld) were not acting within the scope of their employment in carrying out the Iraq War because they started planning the war before taking office. There are at least two problems with this argument. First, the alleged tortious acts of aggression — the invasion of Iraq — took place after Defendants occupied public office, and what took place in the late 1990s was not planning, but only advocacy. During most of that time, neither Wolfowitz nor Rumsfeld could have known that he would soon be in a position to help implement his policy preferences. Second, pre-employment statements of intent or belief do not take the later acts of public officials outside the scope of their employment. Under Plaintiffs theory, every time a politician honors a campaign promise, she could be considered to be acting outside the scope of her employment. Or, if a passionate advocate for voting rights were appointed to head the Civil Rights Division of the Department of Justice, his or her bringing a lawsuit to enforce voting rights would be viewed as outside the scope of his or her employment.

Plaintiff makes a similar argument with respect to Defendants’ motives, which bear on the third prong of the Restatement test — whether an employee’s actions were “actuated, at least in part, by a purpose to serve the master.” Plaintiff asserts that she has “alleged that Defendants were solely motivated by personal, selfish purposes,” but that assertion is not borne out by the factual allegations in the second amended complaint. Plaintiff conflates a policy preference or worldview — which is “personal” in the sense that it may be deeply felt or tied to one’s sense of morality or identity — that motivates one to advocate for certain positions, with a desire to serve one’s individual interests. A federal official would act out of “personal” motives and not be “actuated ... by a purpose to serve the master” if, for instance, he used the leverage of his office to benefit a spouse’s business, paying no heed to the resulting damage to the public welfare. But that is not what Plaintiff has alleged. Rather, she has alleged that Defendants were committed to certain foreign policy objectives in which they believed. Even if those alleged objectives or beliefs were misguided or in contravention of international norms, the motives were not “personal” in the scope-of-employment sense; Defendants’ conduct was “actuated, at least in part, by a purpose to serve the master,” the United States. Ballenger, 444 F.3d at 663.

Finally, Plaintiff argues that Defendants “were not employed to execute a pre-exist-ing war.” But Defendants, as members of the executive branch, were charged broadly with guiding the United States’ foreign policy and with ensuring national security. Dep’t of Navy v. Egan, 484 U.S. 518, 529-30, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). And Congress authorized Defendant Bush “to use the Armed Forces of the United States as he determine[d] to be necessary and appropriate in order to ... defend the national security of the United States against the continuing threat posed by Iraq.” Authorization for Use of Military Force § 3(a). The actions that Defendants took in connection with the Iraq War were part of their official duties, even if some Defendants had hoped to be able to take those actions years before taking office.

In summary, reading the Westfall Act in a straightforward manner and applying District of Columbia respondeat superior law to the facts alleged in the operative complaint, we hold that Defendants’ alleged actions fell within the scope of their employment.

2. Construing the Westfall Act With an Eye Toward Treaty Obligations

Plaintiff next argues that the Westfall Act should not be interpreted so as to regard as “official” an act condemned by treaty. Plaintiff cites as support for this proposition the United Kingdom case of Regina v. Bartle & the Commissioner of Police for the Metropolis & Others ex parte Pinochet (No. 3), [2000] 1 A.C. 147 (H.L.) (appeal taken from Q.B. Div’l Ct.) (U.K.), reprinted in 38 I.L.M. 581 (1999), in which the House of Lords ruled that former Chilean leader Augusto Pinochet was not entitled to official immunity for the role that he played in ordering acts of torture and other violations of international law. Many of the Law Lords reasoned that Pinochet’s acts could not be considered official because the Convention Against Torture forbade such acts, and Chile was a party to that treaty. 38 I.L.M. at 595 (opinion of Lord Browne-Wilkinson); id. at 626-27 (opinion of Lord Hope); id. at 638-39 (opinion of Lord Hutton); id. at 642-43 (opinion of Lord Saville). The United States has signed several treaties and other international agreements condemning aggressive war, and Plaintiff argues that interpreting the Westfall Act to allow for immunity in this case would conflict with those agreements.

This argument suffers from at least two fatal flaws. First, the equivalent of the “scope of employment” test in the Pinochet case was a creature of international law, not a test set out by a domestic statute. The Law Lords were tasked with determining whether Pinochet’s actions could be considered “official” as a matter of international law. The effect of a treaty on that international-law analysis has little bearing on that same treaty’s effect on the seope-of-employment analysis under domestic law.

Second, although we have suggested that ambiguous statutes should be interpreted to avoid conflicts even with non-self-executing treaties, Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1114 (9th Cir. 2001), the Westfall Act is not, in any relevant way, ambiguous. With the Westfall Act — which was enacted after the passage of each of the treaties and agreements to which Plaintiff cites — Congress clearly intended to grant federal officers immunity to the same extent that the United States would have been liable for those employees’ tortious acts under the FTCA (subject to exceptions that are not relevant to today’s analysis). Pelletier, 968 F.2d at 876. When the Westfall Act was passed, it was clear that this immunity covered even heinous acts. See, e.g., Hoston v. Silbert, 681 F.2d 876, 877-80 (D.C. Cir. 1982) (per curiam) (holding that United States Marshals were acting in the scope of their employment when they allegedly beat an unarmed, shackled prisoner and left him to die in a holding cell).

In short, the treaties and charters cited by Plaintiff do not alter oim conclusion that the Westfall Act, by its plain terms, immunizes Defendants from suit.

3. Denial of an Evidentiary Hearing

Plaintiff next argues that she should have been afforded an opportunity to challenge the scope certification at an evidentiary hearing. But because the allegations in the operative complaint, taken as true, do not establish that Defendants acted outside the scope of their employment, an evidentiary hearing would be a futile exercise. See McLachlan, 261 F.3d at 910-11 (finding no abuse of discretion in district court’s denial of hearing to challenge scope certification “because[,] even viewing the evidence in the light most favorable to [the plaintiff] and accepting his version of events, dismissal was appropriate”); see also Wuterich, 562 F.3d at 381 (holding that a plaintiff “may, if necessary, attain ‘limited discovery’ to resolve any factual disputes over” the seope-of-employment issue, but only if he or she “alleg[es] sufficient facts that, taken as true, would establish that the defendant’s actions exceeded the scope of [his or her] employment” (brackets omitted) (quoting Stokes, 327 F.3d at 1214-15)). Accordingly, the district court did not abuse its discretion in denying Plaintiff an evidentiary hearing to challenge the scope certification.

B. Jus Cogens Violations and Domestic Official Immunity

Finally, Plaintiff argues that Defendants cannot be immune under the Westfall Act because she alleges violations of a jus cogens norm of international law. “[A] jus cogens norm, also known as a ‘peremptory norm’ of international law, ‘is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ ” Siderman de Blake v. Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 332). “Whereas customary international law derives solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent.” Id. at 715. “Because jus cogens norms do not depend solely on the consent of states for their binding force, they enjoy the highest status within international law.” Id. (internal quotation marks omitted). “International law does not recognize an act that violates jus cogens as a sovereign act.” Id. at 718.

Plaintiff contends that Congress simply cannot immunize a federal official from liability for a jus cogens violation. In effect, Plaintiff argues that (1) there is a jus cogens norm prohibiting the provision of immunity to officials alleged to have committed jus cogens violations and, (2) insofar as the Westfall Act violates that norm, it is invalid. The argument is premised on the idea that “[i]nternational law does not recognize an act that violates jus cogens as a sovereign act,” so that an official who is alleged to have engaged in such an act cannot cloak himself in the immunity of the sovereign. Siderman de Blake, 965 F.2d at 718.

We assume, without deciding, that the prohibition against aggression is a jus co-gens norm. But even assuming that the prohibition against aggression is a jus co-gens norm, Plaintiffs argument that Congress cannot provide immunity to federal officers in courts of the United States for violations of that norm is in serious tension with our caselaw. In Siderman de Blake, we held that Congress could grant a foreign government immunity from suit for alleged violations of the jus cogens norm against torture. Id. at 718-19. After recognizing that immunity might not be available as a matter of customary international law, we noted that we were dealing “not only with customary international law, but with an affirmative Act of Congress” — in that case, the Foreign Sovereign Immunities Act. Id. at 718.

Siderman de Blake dealt with foreign sovereign immunity, whereas this case concerns the official immunity of domestic officers. But, if anything, that difference cuts against Plaintiff. The immunity of foreign officials in our courts flows from different considerations than does the immunity of domestic officials. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.5 (D.C. Cir. 1985); accord Universal Consol. Cos. v. Bank of China, 35 F.3d 243, 245 (6th Cir. 1994) (“[DJomestic sovereign immunity and foreign sovereign immunity are two separate concepts, the first based in constitutional law and the second in customary international law.”). Given those different origins, it should be easier for the violation of a jus cogens norm to override foreign sovereign immunity than domestic official immunity. Therefore, our holding in Siderman de Blake — that Congress can provide immunity to a foreign government for its jus cogens violations, evefi when such immunity is inconsistent with principles of international law — compels the conclusion that Congress also can provide immunity for federal officers for jus cogens violations.

CONCLUSION

Defendants are entitled to immunity under the Westfall Act. Accordingly, the United States was properly substituted as the sole defendant. Because Plaintiff did not exhaust her administrative remedies against the United States', the district court properly dismissed the case for lack of subject matter jurisdiction.

AFFIRMED.

      . We recount the facts as alleged in Plaintiffs second amended complaint. See McLachlan v. Bell, 261 F.3d 908, 909 (9th Cir. 2001) (holding that, when reviewing a dismissal in the absence of an evidentiary hearing, “we accept as true the factual allegations in the complaint'').

      . The defendants are former President George W. Bush, former Vice President Richard B. Cheney, former Secretary of Defense Donald Rumsfeld, former National Security Advisor and Secretary of State Condoleezza Rice, former Secretary of State Colin Powell, former Deputy Secretary of Defense Paul Wolfowitz, 10 other former high-ranking officials in the Bush Administration, and the United States. In this opinion, we use “Defendants” to refer only to the individual defendants, who were the named defendants below. We refer to the United States, which was substituted as the sole defendant, as the United States.

      . Like Plaintiff, we use the shorthand term "aggression” to refer to both aggression itself and conspiracy to commit aggression, both of which Defendants are alleged to have engaged in. For purposes of this case, we define aggression as the waging of unprovoked war. See, e.g., Depositary Notification, Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, Reference C.N.651.2010 (Nov. 29, 2010) (defining aggression in a similar, though more complex, way). A slightly different definition of aggression is "the use of military force as an instrument of advancing national policy.” Grant M. Dawson, Defining Substantive Crimes Within the Subject Matter Jurisdiction of the International Criminal Court: What is the Crime of Aggression?, 19 N.Y.L. Sch. J. Int’l & Comp. L.' 413, 432 (2000). Our analysis does not depend on the precise definition of aggression.

      . Because we resolve this case on the ground that Plaintiff failed to exhaust administrative remedies as required by the FTCA — a jurisdictional requirement under our caselaw, Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000)—we do not address any other threshold issues. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (holding that “there is no unyielding jurisdictional hierarchy”).

      . Plaintiff also contends that judicial estoppel should bar the United States and Defendants from arguing that Defendants are entitled to immunity, because the United States took a different position during the Nuremberg Trials following World War II. We are not persuaded. The immunity claimed by Defendants and the United States comes from the West-fall Act, which did not exist at the time of the Nuremberg Trials. Thus, even assuming that the current position of the United States were clearly inconsistent with the position taken at the Nuremberg Trials, the new position rests on an intervening change in law and therefore is not subject to judicial estoppel. See Longaberger Co. v. Kolt, 586 F.3d 459, 470 (6th Cir. 2009) (collecting cases), abrogated on other grounds by Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, U.S. -, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016).

      . The Act is officially called the Federal Employees Liability Reform and Tort Compensation Act of 1988, but it is “commonly known as the Westfall Act.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419-20, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995).

      . United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

      . Plaintiff cites the following treaties and agreements: the United Nations Charter, June 26, 1945, 59 Stat. 1031, T.S. No. 993; the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [London Charter]; the Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589; and the Kellogg-Briand Peace Pact, Aug. 27, 1998, 46 Stat. 2343, 94 L.N.T.S. 57.

      .The proposition that statutes should be construed to avoid conflicts with non-self-executing treaties has been the subject of some debate by both courts and commentators. See Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006) (Kavanaugh, J., concurring) (opining that "the canon against construing an ambiguous statute to abrogate a treaty ... should not apply in cases involving non-self-executing treaties”); see also Rebecca Crootof, Note, Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon, 120 Yale L.J. 1784, 1790-91 (2011) (arguing that ambiguous statutes should be read to avoid conflicts with non-self-executing treaties). By contrast, there is no doubt that when a self-executing treaty and a statute "relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either.” Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888).

      . Plaintiff did not seek leave to amend the complaint for a third time.

      . Plaintiff also argues that she was entitled to a jury determination of the correctness of the scope certification. But a judge, not a jury, is the “appropriate trier of any facts essential to certification.” Osborn, 549 U.S. at 252, 127 S.Ct. 881.

      . Or, alternatively, Plaintiff contends that there is a prohibition on defining an official’s scope of employment under domestic law to include actions that violate jus cogens norms.

      . See, e.g., Evan J. Criddle & Evan Fox-Decent; A Fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L. 331, 333 (2009) (describing the prohibition on aggression as a "recognized peremptory norm! ]”).

      . Siderman de Blake also forecloses the alternative formulation of Plaintiff’s argument— that an official’s scope of employment under domestic law cannot include actions that violate jus cogens norms. We held in Siderman de Blake that actions violating jus cogens norms, although not recognized as sovereign acts under international law, could constitute sovereign acts for purposes of the Foreign Sovereign Immunities Act. 965 F.2d at 718-19. Similarly, Defendants’ alleged violations of a jus cogens norm can be considered to be within the scope of their employment as a matter of domestic law.


source: Caselaw Access Project

author: ZOUHARY, District Judge:

license: Public Domain

text:
    John HERKLOTZ, Cross-Claimant-Appellant, v. Eric PARKINSON, Charles von Bernuth, and Plaza Entertainment, Inc., Cross-Defendants-Appellees, and Thomas G. Gehring, Third-Party-Defendant-Appellee.
    Nos. 07-56657
    07-56662
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 10, 2016 Pasadena, California
    Filed February 14, 2017

      Charles E. Ruben (argued), Law Offices of Charles E. Ruben, Los Angeles, California, for Cross-Claimant-Appellant John Herklotz.
    David S. Fisher (argued), Fisher Law Corporation, Woodland Hills, California, for Cross-Defendant-Appellee Charles von Bernuth.
    David T. Stowell (argued), Stowell Zeil-enga Ruth Vaughn & Treiger LLP, West-lake Village, California, for Third-Party-Defendant-Appellee Thomas G. Gehring.
    Before: MARSHA S. BERZON and JACQUELINE H. NGUYEN, Circuit Judges, and JACK ZOUHARY, District Judge.

       The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

   OPINION

ZOUHARY, District Judge:

This case serves as a reminder of the foundational rule that federal courts are courts of limited jurisdiction. An initial overview of this procedurally tortured, sixteen-year saga may be useful.

In a nutshell: this action began in 2000 as a diversity suit in the Western District of Pennsylvania by Plaintiff WRS, Inc. against Defendants Plaza Entertainment and its directors John Herklotz, Eric Parkinson, and Charles von Bernuth. Herklotz crossclaimed against Plaza, Parkinson, and von Bernuth. When the district court granted summary judgment in favor of WRS, Herklotz moved to sever his state law Crossclaim and transfer it to the Central District of California. The Pennsylvania district court granted the unopposed motion, severed the Crossclaim, and transferred the newly independent case. The California district court then dismissed Herklotz’s claims under Federal Civil Rule 12(b)(6), from which Herklotz appeals.

In advance of oral argument, we signaled our concern that the district court lacked subject matter jurisdiction over the state law Crossclaim between non-diverse parties. We then invited supplemental briefing on that question following oral argument.

Background

In the mid 1990s, Herklotz negotiated an agreement with Eric Parkinson and Parkinson’s company, Plaza Entertainment, to distribute a family film called “The Giant of Thunder Mountain.” As part of this arrangement, Herklotz invested in Plaza and also became a director and shareholder of the company. Plaza in turn hired WRS to perform video duplication services. Plaza asked WRS to work on a credit basis, but WRS refused unless Plaza paid its past due balance from previous projects and executed a surety agreement. Herklotz provided his personal guaranty for Plaza’s debt, and WRS moved forward with the duplication services.

Plaza intended to distribute the movie to Walmart, but took a significant financial hit when Walmart cancelled its order. When Plaza fell even further behind in its payments to WRS, the two companies negotiated a service agreement through which WRS took over Plaza’s distribution, sales, and collections. Parkinson and Charles von Bernuth, Plaza’s Chief Operating Officer, provided additional personal guaranties for Plaza’s debt. However, Plaza never came current on its account and ultimately owed WRS nearly $1.5 million, plus interest.

In 2000, WRS (a Pennsylvania company) sued Plaza (a California company), and Parkinson, von Bernuth, and Herklotz (all California residents) in federal court in Pennsylvania. Herklotz crossclaimed against Plaza, Parkinson, and von Bernuth for indemnity, and against Parkinson and von Bernuth for breach of fiduciary duty and misrepresentation — all state law claims.

The Pennsylvania litigation stalled in 2002, when WRS filed for bankruptcy, and eventually resumed in 2005. Default judgments were entered against Plaza, Parkinson, and von Bernuth, and WRS prevailed against Herklotz on summary judgment. In February 2007, the district court entered judgment for $2.5 million in favor of WRS, for which Parkinson, von Bernuth, and Herklotz were jointly and severally hable.

Herklotz then moved to sever his Cross-claim against Plaza, Parkinson, and von Bernuth and to transfer the severed claims to federal court in California. The Pennsylvania court granted the unopposed motion. Several months later, Herklotz filed a First Amended Crossclaim, which added state law claims against Thomas Geh-ring — Herklotz’s former attorney, Plaza shareholder, and fellow Californian — for indemnity and breach of fiduciary duty.

Neither Plaza nor Parkinson responded to the First Amended Crossclaim. Von Bernuth and Gehring both moved to dismiss for failure to state a claim, and the district court granted both motions. Herk-lotz timely appealed in October 2007. He argues the district court erred in dismissing his claims without allowing leave to amend.

Meanwhile, Herklotz also filed a parallel action in California state court in December 2007. He raised claims for indemnity, contribution, and declaratory relief against ■ Plaza, Parkinson, von Bernuth, and Geh-ring. As in the federal action, Plaza and Parkinson did not appear, answer, or otherwise plead. Von Bernuth and Gehring both demurred, arguing the state court action was barred by res judicata in light of the resolution of the federal proceeding. In March 2008, the California trial court dismissed the complaint with prejudice, and the state appellate court affirmed in November 2009.

Discussion

Federal courts are courts of limited jurisdiction, and parties may not expand that jurisdiction by waiver or consent. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam). Thus, challenges to subject matter jurisdiction may be raised at any point, including for the first time on appeal. Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1202 (9th Cir. 2007). Moreover, even if the parties do not dispute jurisdiction, this Court has an independent obligation to assess both its own and the district court’s jurisdiction. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc); California ex rel. Sacramento Metro. Air Qual. Mgmt. Dist. v. United States, 215 F.3d 1005, 1009 (9th Cir. 2000) (“An appellate court is under a ‘special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it ... [or] make no contention concerning it.’ ”) (quoting Axess Int'l Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 943 (9th Cir. 1999)).

Effect of Severance on Federal Jurisdiction

Herklotz’s severed Crossclaim included only state law claims against non-diverse parties. Both Herklotz and Geh-ring contend the Pennsylvania district court retained supplemental jurisdiction over the Crossclaim following summary judgment on the underlying Complaint. They cite 28 U.S.C. § 1367(c)(3), which provides a federal court with discretion to retain or decline jurisdiction over pendent state law claims once those claims within the court’s original jurisdiction have been dismissed or otherwise resolved. See also Acri v. Varaan Assocs., Inc., 114 F.3d 999, 1000-01 (9th Cir. 1997) (en banc); Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 283 (5th Cir. 1994). But this principle presumes the pendent claims remain part of the original action, even if the federal claims to which they once related have been dismissed.

That did not happen here. Instead, once the Pennsylvania district court granted summary judgment on the claims within its original jurisdiction, Herklotz opted to sever the Crossclaim. When a claim is severed, it becomes an entirely new and independent case. See, e.g., Gaffney v. Riverboat Servs. of Ind., 451 F.3d 424, 441 (7th Cir. 2006) (“As a general matter, Rule 21 severance creates two discrete, independent actions, which then proceed as separate suits for the purpose of finality and appealability.”); E.S. v. Indep. Sch. Dist., 135 F.3d 566, 568 (8th Cir. 1998) (“When a single claim is severed from a lawsuit, it proceeds as a discrete, independent action....”); United States v. O’Neill, 709 F.2d 361, 368 (5th Cir. 1983) (“Severance under Rule 21 creates two separate actions or suits where previously there was but one.”). Thus, the Crossclaim became the operative complaint of a new lawsuit.

A severed action must have an independent jurisdictional basis. Honeywell Int'l Inc. v. Phillips Petroleum Co., 415 F.3d 429, 431-32 (5th Cir. 2005). It can no longer rely on the supplemental jurisdiction afforded by 28 U.S.C. § 1367(a), for there is nothing left to supplement. That is, “the once-upon-a-time related claim is no longer a related claim because there is no federal claim to which it can relate.” Louisiana v. Am. Nat’l Prop. & Cas. Co., 746 F.3d 633, 638 (5th Cir. 2014). This is apparent from the plain language of Section 1367(a), which provides that “district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a) (emphasis added). Where, as here, the claims were stripped of their jurisdictional predicate through severance, they lose their federal hook and must stand on their own.

Gehring contends the Fifth Circuit’s decision in Louisiana, 746 F.3d 633, limits its earlier holding in Honeywell, 415 F.3d 429, such that the latter can no longer be read to require an independent jurisdictional basis for severed actions. However, Louisiana itself is inapposite, for the district court in that case had original jurisdiction over the severed claims under the Class Action Fairness Act. 746 F.3d at 639. Thus, the Fifth Circuit repeatedly remarked that Honeywell “applies only to severed claims that are based on supplemental jurisdiction.” Id. at 640 (emphasis added). That is precisely the situation here.

Herklotz and Gehring also protest that applying the Honeywell rule here would’ interfere with the authority of the district court to transfer venue and the ability of the parties to consent to such a transfer under 28 U.S.C. § 1404(a). In other words, they suggest the district court must retain jurisdiction to preserve its ability to transfer venue. They have it backwards. Certainly a district court may transfer a case that is properly within its jurisdiction. But the Pennsylvania district court lost jurisdiction over the Crossclaim when it was severed from the original action. Once that fact is established, it becomes irrelevant whether the parties consented to the transfer to California. The Pennsylvania court lacked jurisdiction to enter the transfer order, and the California court lacked jurisdiction to take the case.

One can easily imagine how the parties found themselves in this predicament. Presumably, once the WRS claims were resolved, Herklotz was not enthused by the prospect of continuing to travel cross country to litigate his Crossclaim. WRS apparently did not oppose the motion to sever and transfer — likely because WRS had no skin in that game, as it had already prevailed on its claims and was not a party to the Crossclaim. From the perspective of the Pennsylvania court, it was presented with an opportunity to close a case that had been pending on its docket for seven years. It is not surprising that it did not scrutinize the unopposed motion more closely. Nevertheless, the appropriate course of action would have been either to deny the motion to sever and retain jurisdiction over the supplemental state law claims, or to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) and dismiss the Crossclaim, thus permitting Herklotz to seek relief in state court.

Effect of State Court Proceeding

Alternatively, von Bernuth suggests we may avoid this jurisdictional quagmire by shifting our focus. He contends that whether or not the California court had subject matter jurisdiction at the time the case was transferred, this Court has jurisdiction now because there is a federal question arising from the parallel state court proceeding: namely, the preclu-sive effect of that judgment. The sole authority cited for this theory, Cawley v. Celeste (In re Athens/Alpha Gas Corp.), 715 F.3d 230 (8th Cir. 2013), is inapposite. In that ease, the Eighth Circuit recognized that courts may resolve cases on preclusion grounds without first addressing jurisdiction in the limited circumstances where the preclusion inquiry “overlaps significantly with the analysis required” to assess jurisdiction, such as under the Rooker-Feldman doctrine. Id. at 235.

The jurisdictional question in this case is not a “murky problem under Rooker-Feld-man” id. but a straightforward analysis of diversity jurisdiction — one which overlaps not at all with the preclusion arguments raised on appeal. Von Bernuth’s proposal that we fast-forward to the issue of res judicata is absolutely contrary to the fundamental legal principle that jurisdiction must be established in the first instance. It cannot be waived by agreement or delayed like a bouncing ball.

Conclusion

It is unfortunate this lengthy odyssey must conclude in this way, but jurisdiction is one rule this Court cannot bend. Accordingly, we vacate the district court judgment and remand with instructions to dismiss for lack of jurisdiction.

VACATED AND REMANDED.

Each side to bear its own costs.


author: PHILLIPS, Circuit Judge.

text:
    The ESTATE OF James D. REDD, M.D., BY AND THROUGH Jeanne H. REDD, the personal representative for and on behalf of Plaintiffs Decedent James D. Redd, and his heirs as an individual in a survivorship action and in a wrongful death action, Plaintiff-Appellant, v. Daniel LOVE, Bureau of Land Management Special Agent, in his individual capacity, Defendant-Appellee, Lauren Good, Special Agent Bureau of Land Management, in her individual capacity; David Kice, BLM Special Agent, in his individual capacity; Dan Barnes, Bureau of Land Management Special Agent, in his individual capacity; Jon Edwards, Special Agent Bureau of Land Management, in his individual capacity; Seth Footlik, FBI Special Agent, in his individual capacity; Brent Range, Special Agent Bureau of Land Management, in his official capacity; Jennifer Vanderveer, Special Agent Bureau of Land Management, in her individual capacity; Selma Sierra, Former BLM Agent Director, in her individual capacity; Juan Palma, BLM Utah Director, in his individual capacity; Lynda Viti, FBI Special Agent, in her individual capacity; Neil Rogers, FBI Special Agent, in his individual capacity; Diane Eden Kisabeth, FBI Agent, in her individual capacity; Gibson M. Wilson, FBI Special Agent, in his individual capacity; Timothy Fuhrman, FBI Special Agent In Charge, in his individual capacity; James McTighe, FBI Special Agent In Charge, in his individual capacity, Defendants.
    No. 16-4010
    United States Court of Appeals, Tenth Circuit.
    Filed February 13, 2017

      Shandor S. Badaruddin, (Edward P. Moriarity, with counsel on the briefs), Moriarity & Badaruddin, Missoula, Montana, for Plaintiff-Appellant.
    Laura K. Smith, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern and Sonia K. McNeil, Attorneys, with counsel on the brief), United States Department of Justice, Washington, D.C., for Defendant-Appellee.
    Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.
   PHILLIPS, Circuit Judge.

In June 2009, as part of a federal law-enforcement investigation known as “Operation Cerberus,” FBI and Bureau of Land Management (“BLM”) agents arrested twenty-three people and searched twelve properties in and near three Utah cities— Blanding, Monticello, and Moab. The operation targeted persons possessing and trafficking in Native American artifacts illegally taken from the Four Corners region of the United States. One day after agents searched Dr. James D. Redd’s home, arrested him as part of this operation, and released him on bond, Dr. Redd committed suicide.

Dr. Redd’s Estate (“the Estate”) sued sixteen named FBI and BLM agents and twenty-one unnamed agents under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), claiming that the agents had violated Dr. Redd’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The district court granted the Defendants’ motions to dismiss all of the Estate’s claims except one — a Fourth Amendment excessive-force claim against the lead BLM agent, Daniel Love. Later, on qualified-immunity grounds, the district court granted Agent Love summary judgment on that final claim. The Estate appeals the- district court’s dismissal of the excessive-force claim. We affirm.

BACKGROUND

1. Operation Cerberus

To deal with the problem of people illegally taking and trafficking Native American artifacts from federal lands, BLM agents and FBI agents jointly investigated these crimes occurring in southern Utah and the Four Corners region. As part of their investigation, the two agencies arranged controlled sales of illegally taken artifacts. Agent Love served as the lead BLM agent for the operation. After presenting a judicial officer an affidavit about these undercover transactions, the agents obtained many search and arrest warrants, including warrants to arrest Dr. and Mrs. Redd and to search their house.

On June 10, 2009, twelve teams of BLM and FBI agents simultaneously executed search warrants at different locations in and near Blanding, Monticello, and Moab, Utah. Each team assigned to the scattered search locations comprised between eight and twenty-one federal agents and at least one cultural specialist. Upon completing their assigned searches, agents reported to other search locations to help as needed.

Team members were concerned for their safety because some local citizens had previously acted hostilely toward federal officials. Partly for that reason, each team had .■an operations plan identifying its target location and any expected obstacles. FBI and BLM policy required agents to wear soft body armor and to carry a firearm when executing warrants or when confronting potentially dangerous situations. For a high-risk search at one house, the FBI’s Salt Lake City SWAT team furnished ten members to assist in executing that search warrant.

Based on evidence seized during the searches, the agents arrested twenty-three people for allegedly possessing or trafficking stolen Native American artifacts. Sixteen of the arrestees, including Dr. and Mrs. Redd, resided in Blanding, Utah.

II. Search and Arrest Warrants for the Redds

The operations plan for the team assigned to search the Redds’ house advised that three adults and one child lived there — Dr. and Mrs. Redd, their adult daughter Jericca Redd, and her minor son. The plan further advised that the Redds’ house stood on elevated terrain, making its one-eighth-of-a-mile-long driveway visible from the house. Before arriving, the agents didn’t know whether the Redds owned guns, or whether anything prevented entry onto the property or barricaded the house.

Upon arriving, the agents knocked on the front door. When Mrs. Redd answered, agents arrested her without incident and took her to the kitchen. Agents took Jeric-ca Redd to the piano room upstairs. Dr. Redd wasn’t then at the house, but agents arrested him when he arrived home at 6:55 a.m. Dr. and Mrs. Redd waived their Miranda rights and spoke with the agents, at least intermittently, until no later than 10:34 a.m., when the agents drove the Redds to Monticello, Utah for booking. Jericca Redd drove her parents back to their house after their initial court appearances in Moab, Utah. When the Redds arrived home at about 5:00 p.m., agents were still searching the house, so the Redds waited outside for them to finish. By about 5:30 p.m., the agents had completed their search, and the Redds reentered their house. The next day, Dr. Redd committed suicide.

III. Number of Agents

The parties disagree about how many agents were on the Redds’ property during the search and arrests. An official list of search locations and' agents (“Search Warrant Locations List”) shows that those directing the entire operation apportioned 130 agents among the twelve locations. Each search location had between eight and twenty-one agents. The Search Warrant Locations List shows that at least one “cultural specialist” was also assigned to each search location. R. vol. 7 at 784-85. A list of command agents and their locations (“Command Locations List”) identifies twenty command agents unassigned to any particular location. These command agents moved between search warrant locations and command-post locations as needed.

The Search Warrant Locations List shows that those directing the operation assigned twelve agents to the Redds’ house. Upon arriving at and departing from the Redds’ house, all agents were required to sign a log identifying their arrival and departure times. This sign-in log reveals that twelve agents and one cultural specialist were present when Dr. Redd arrived home at 6:55 a.m. When Dr. Redd arrived, some of these agents were already inside the house with Mrs. Redd and Jericca Redd, so Dr. Redd initially encountered fewer than twelve agents. Two agents met Dr. Redd at the end of the driveway and escorted him to the garage, and two other agents joined them in questioning Dr. Redd inside the garage. Beyond this, the record provides no help in determining how many agents Dr. Redd saw that morning.

The Estate agrees that the initial team comprised no more than twelve BLM and FBI agents and one cultural specialist. It also agrees that a team this size was lawful. But the Estate contends that over the course of the hours-long search of the Redds’ house, as many as sixty-nine agents arrived there. In support, it relies on a simple but problematic mathematical calculation.

First, it contends that 150 agents participated in the searches, pointing to an FBI press release saying that “[t]he law enforcement operation was conducted on June 10, 2009 by approximately 150 agents and employees from the FBI and the BLM.” R. vol. 17 at 1237. Second, it subtracts from this figure 91 agents — those identified by Agent Love as searching at locations other than the Redds’ house. From this, the Estate argues that it is “reasonable to infer that one or more, and likely more, of the remaining sixty-nine agents (150 minus 91) were at the Redd Home.” Appellant’s Opening Br. at 25. But Agent Love’s list of agents searching the eleven locations besides the Redds’ house in southern Utah that day totals 122 agents and employees (not 91 as the Estate says). This means that at most, twenty-eight agents were not listed at a specific search location.

As additional support to show &■ large number of agents on the Redds’ property, the Estate relies on the Declaration of Jericca Redd, who says she saw “as many as 50 agents at any one time,” not specifying where or when she saw them, instead saying only that they had been “everywhere.” R. vol. 17 at 1241, 1243. Perhaps to help confirm her estimate, Jericca Redd also recounts that she heard Agent Love call other agents on a telephone to come assist in searching the Redds’ house. But she also says she left the house “sometime after 12:00 pm” to pick up her parents from their court appearance in Moab. Id. at 1244. So she was able to see ágents who arrived at the Redds’ house after her parents had left for booking in Monticello.

Agent Love disputes the Estate’s calculations. He testified that no more than twenty-two agents were at the Redds’ house while Dr. Redd was there between 6:55 a.m. and 10:34 a.m. He also testified that some agents came to the Redds’ house after completing their assigned searches to help identify and catalog the unexpectedly high number of artifacts found at the Redds’ house. To support his count, Agent Love relied on the sign-in log at the Redds’ house. Twenty-two agents signed the log before agents took Dr. Redd and Mrs. Redd to Monticello for booking. Among these twenty-two agents, Agent Love included nine agents who arrived sometime before the agents took Dr. and Mrs. Redd to Monticello, Utah, including four FBI SWAT-team members.

IV. Appearance of Agents

The Estate also presented evidence that some agents wore SWAT-like gear. By the Estate’s account, the agents who first entered the home to arrest Mrs. Redd “were heavily armed” and “appeared to be wearing bullet proof vests or some sort of body armor or flak jacket.” Id. at 1242. Jericca Redd says that the agents’ “appearance was more like military than the police officers I am accustomed to seeing,” and likened their attire to that of a SWAT-team member shown in a government exhibit. Id. According to Jericca Redd, the agents’ guns “looked like machine guns,” and were not “pistols or rifles.” Id. She concedes that some agents entering the house were not as heavily armed. She also clarifies that the agents “all had guns, but they did not all have their guns out.” Id. at 1243.

Agent Love testified that only four SWAT-team members assisted in the Redd search, and that they arrived, after Dr. Redd was inside the garage. He also said that, except for the four SWAT-team members and the cultural specialists, all the other agents wore soft body armor (also called bulletproof vests) and carried guns, as required under BLM and FBI policy. Viewing the evidence in the light most favorable to the Estate, we assume that the first set of agents wore soft body armor and carried firearms.

V. District Court Proceedings

After Dr. Redd’s suicide, .the Estate, as well as Dr. Redd’s heirs and Mrs. Redd, filed this Bivens action, claiming wrongful-death damages. As mentioned, the Estate’s sole claim on appeal was that Agent Love used excessive force in violation of the Fourth Amendment by sending a large number of heavily armed federal agents to execute the Redds’ warrants. Agent Love moved for summary judgment on qualified-immunity grounds.

After considering the evidence about the number of agents, including the sign-in log and Jericca Redd’s Declaration, the district court found that a maximum of twenty-two agents — counting the initial twelve that Jericca Redd had described as clothed in SWAT-like gear — were present somewhere on the Redd’s property before agents drove Dr. and Mrs. Redd away at 10:34 a.m. Relying on Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001), the district court granted Agent Love’s summary-judgment motion on qualified-immunity grounds. Addressing the first prong of the qualified-immunity analysis, the district court concluded that “the ... agents’ mere presence at the home and proximity to Dr. Redd, without more, did not create an excessive show of force.” Estate of Redd v. Love, No. 2:11-cv-00478-RJS, 2015 WL 8665348, at *12 (D. Utah Dec. 11, 2015). And addressing the second prong, the district court concluded that

not every reasonable officer would have been on notice that it would be unlawful to deploy twelve SWAT-like agents and a cultural specialist to execute a warrant and then call nine additional agents to help search a home and catalog substantial physical evidence for a nonviolent offense at the home of a nonviolent person.

Id. at *14. The Estate appealed.

DISCUSSION

I. Standard of Review

We review de novo a grant of summary judgment that is based on qualified immunity. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “[Qualified immunity ... is both a defense to liability and a limited ‘entitlement not to stand trial or face the other burdens of litigation.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Once a defendant asserts qualified immunity, “the burden shifts to the plaintiff to establish (1) a violation of a constitutional right (2) that was clearly established” at the time of the violation. Puller, 781 F.3d at 1196 (citing Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en banc)). We may decide which of these two prongs to address first, and need not address both. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 n.2 (10th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).

To meet the “heavy two-part burden” necessary to overcome a qualified-immunity defense, plaintiffs must point to admissible evidence in the record. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). ‘‘We review the evidence in the light most favorable to the nonmoving party.” Puller, 781 F.3d at 1196 (quoting Cortez, 478 F.3d at 1115). But we need not make unreasonable inferences that are unsupported by the record. See Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1187 (10th Cir. 2013) (“Although our summary judgment standard requires us to view the facts in the light most favorable to the non-moving party, it does not require us to make unreasonable inferences in favor of the non-moving party.” (quoting Carney v. City & Cty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008))) (internal quotation marks omitted).

II. . Qualified Immunity

We address only the first prong of the qualified-immunity analysis, whether Agent Love violated Dr. Redd’s constitutional rights. See Thomson, 584 F.3d at 1312 n.2. The Estate asserts that Agent Love violated Dr. Redd’s Fourth Amendment rights by using excessive force in executing his arrest warrant. We evaluate excessive-force claims using the Fourth Amendment’s objective-reasonableness standard. See Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). In this context, qualified immunity turns on “whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Thomson, 584 F.3d at 1313 (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In determining this, we must balance “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Factors relevant to this inquiry include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id.

To satisfy its summary-judgment burden under the first prong of the qualified-immunity analysis, the Estate must produce evidence sufficient to show that Agent Love employed excessive force in violation of Dr. Redd’s Fourth Amendment rights. See Brosseau, 543 U.S. at 197, 125 S.Ct. 596. The Estate bases its excessive-force claim on the number of agents at the Redds’ house and their appearance. Specifically, it alleges that Agent Love used excessive force by deploying more than fifty agents wearing bullet-proof vests and carrying guns to execute the warrants. But the Estate offers no proof that Dr. Redd even saw fifty agents before being transported to Monticello, Utah. Moreover, it doesn’t claim that the agents used excessive force by physically abusing Dr. Redd or pointing firearms at him.

A. Number of Agents

The parties dispute how many agents participated in the search at the Redds’ house. At about 6:55 a.m., immediately after Dr. Redd drove up his driveway, agents arrested him. Everyone agrees that twelve agents and a cultural specialist were then at the Redd property, and that some of these agents were inside the house with Mrs. Redd and Jericca Redd. Moreover, everyone agrees that after arresting Dr. Redd, agents took him to the garage. Except for a visit to the bathroom, located immediately inside the home from the garage, Dr. Redd remained inside the garage until 10:34 a.m., when agents took him to Monticello, Utah. When describing Dr. Redd’s arrest and voluntary questioning, the record documents refer to just five agents: Agent Barnes, Agent Van-derveer and three “unidentified agent[s].” R. vol. 2 at 376-88.

Perhaps Dr. Redd saw additional agents when he was briefly outside his garage before being taken to Monticello; but the record doesn’t give us a fair idea how many agents might have been in his sight. For help, we look to the sign-in log, which reveals that of the twenty-two agents who had been at the house between 6:55 a.m. and 10:34 a.m., only sixteen remained when Dr. Redd left his property. Because some agents were inside the Redds’ house searching, not all sixteen remaining agents would have been in Dr. Redd’s sight by the time he left the property.

In supporting its excessive-force claim, the Estate relies in part on Graham and Holland. First, it argues that all three Graham factors — specifically, “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight” — weigh heavily in its favor. 490 U.S. at 396, 109 S.Ct. 1865. So, the Estate argues, we shouldn’t go any further than applying these factors, and should instead determine that Agent Love’s conduct was objectively unreasonable based solely on these factors. But Graham itself noted that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Id. (alteration in original) (quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). And it noted that the Fourth Amendment • reasonableness analysis always depends on whether the totality of the circumstances justified the conduct at issue. Id. (quoting Garner, 471 U.S. at 8-9, 105 S.Ct. 1694).

The Fourth Amendment reasonableness analysis is not limited to the three Graham factors. Here, an analysis based strictly on the Graham factors wouldn’t reach all the circumstances relevant in considering the Estate’s Fourth Amendment claim. See Brosseau, 543 U.S. at 197-99, 125 S.Ct. 596 (explaining that while Gamer’s and Graham’s principles guide courts in determining whether there was a constitutional violation, excessive force claims must still be judged on an objective reasonableness standard). Graham involved just one defendant whom police arrested without a warrant in a public setting. 490 U.S. at 389, 109 S.Ct. 1865. Because Graham’s circumstances differ so greatly from those in this case, its framework doesn’t fit the constitutional question here.

Second, in supporting its excessive-force claim, the Estate also relies on Holland, 268 F.3d at 1183. There, we evaluated excessive-force claims arising from a sheriffs deploying seven SWAT-team deputies and three uniformed non-SWAT deputies to execute a search warrant and misdemeanor-arrest warrant. Id. We also evaluated the SWAT team’s conduct while doing so. Id. During the nighttime search and arrest, the SWAT team wore green camouflage clothing without law-enforcement markings and hoods covering their faces except for their eyes. Id.

Upon arriving at the residence, the SWAT-team deputies approached three people playing basketball in front of the house, one just eight years old, pointed firearms at them', and ordered them to lie face down on the concrete. Id. at 1183-84. On their way to the house, they encountered a second minor and ordered him at gunpoint to lie on the ground. Id. at 1184. Still outside the home, a SWAT-team member encountered a four-year old girl, who ran into the house screaming after seeing the SWAT-team members. Id. As the young girl ran, a SWAT-team member trained his firearm’s laser on the girl’s back. Id. The SWAT-team members then entered the house and held several people inside at gunpoint. Id. The home’s occupants also contended that the SWAT team had entered the home without knocking and announcing their presence. Id.

In evaluating whether the SWAT team’s conduct amounted to excessive force, we observed that “[t]he decision to deploy a SWAT team to execute a warrant necessarily involves the decision to make an overwhelming show of force — force far greater than that normally applied in police encounters with citizens.” Id. at 1190. But we ultimately concluded that “the force invoked by the decision to deploy” the SWAT team was not excessive under the Fourth Amendment. Id. at 1191 (emphasis in original). In those particular circumstances, which presented a possibility of violence from the suspect, we concluded that deploying heavily armed SWAT deputies in unmarked gear obscuring the deputies’ faces was not objectively unreasonable. See id. In so holding, we noted that the deputies expected to — and indeed did — find several people besides the suspect at the suspect’s residence, and that they also found firearms there. Id. On this basis, we awarded the sheriff and deputies qualified immunity against the excessive-force claim based upon their SWAT gear. Id. at 1192.

Agent Love had equally good — if not better — reason to deploy many agents to search the Redds’ expansive home and provide for officer safety. Although not facing an allegedly violent misdemeanant as in Holland, the agents in Operation Cerberus had ample reason to believe that they were entering a hostile environment. The Estate acknowledges the historical tension between federal powers and some of Blanding’s citizenry. And importantly, recent history shows instances of violence from some of the local citizenry against federal employees and agents working there. We certainly can’t say that the agents acted imprudently in “anticipat[ing] hostility from the suspects and members of the community.” R. vol. 7 at 784.

Moreover, in particular, Agent Love had an objectively reasonable basis for safety concerns in arresting the Redds and searching their home. Though the agents expected to find only three adults and a child, the agents knew that the Redds also had two adult sons. And the agents had particular reason to believe that the Redds might be hostile to the federal government. In a highly publicized and locally controversial criminal case in 1995, federal agents arrested Dr. Redd and Mrs. Redd for desecrating a dead body while they were digging for Native American artifacts. Finally, Dr. Redd’s status as a physician did not eliminate the federal agents’ concerns that arresting him and his wife might provoke a response.

The reasonableness of these safety concerns was borne out when a man the agents believed was one of the Redds’ sons called the Redds’ house and left two threatening voicemails, prompting the four FBI SWAT-team members to take defensive positions to protect against possible violence. The first call came at 11:55 a.m. with the caller saying, “Is anybody there? I know somebody’s there. A whole bunch of you. You gonna pick up the phone? All right. I’ll be ... there in a little bit. Be ready.” R. vol. 13 at 914. The second call came at 1:13 p.m., and the caller said, “Hey, you guys still too scared to answer the phone? Don’t touch anything of mine. Trust me. You don’t want to.” Id.

Further, beyond safety concerns, Agent Love had an objectively reasonable basis to deploy the numerous agents at the Redds’ house. The search required locating, sorting, and cataloging more than 800 Native American artifacts — a job requiring many personnel. And allowing other agents to help at the Redds’ house after completing their searches elsewhere was also objectively reasonable. Otherwise, it appears that agents could not have finished the search by day’s end, leaving the Redds unable to return to their house that day. Cf. Mountain Pure, LLC v. Roberts, 814 F.3d 928, 931, 933 (8th Cir. 2016) (holding that it was reasonable for thirty-five law enforcement agents to search a 100,000-square-foot bottling facility).

Nor has the Estate offered any cases holding that law-enforcement officers acted with excessive force by virtue of the number of officers deployed to execute a search warrant and arrest warrant. But we have located several cases in which courts have found no excessive force despite similar numbers of officers being deployed. We leave open the possibility that sending a large number of agents to execute a search warrant and arrest warrant for a nonviolent crime can amount to excessive force. But this isn’t that case. Again, the Estate presents insufficient evidence about how many agents Dr. Redd even saw. And the Estate does not suggest on appeal that the agents — however many Dr. Redd saw — acted aggressively or threateningly toward him. In view of the need to search an expansive home for sometimes tiny objects, as well as a legitimate concern for officer safety, the totality of the circumstances justified the number of agents executing the search and arrest warrants at the Redds’ house.

B. Appearance of Agents

The Estate contends that Agent Love also acted with excessive force in deploying the agents in SWAT-like gear. But this decision rested outside Agent Love’s authority — BLM. and FBI policy required the agents to wear soft body armor and carry guns. The BLM manual requires that “[w]hen in uniform, all [law enforcement officers] will wear the primary firearm, and handcuffs at all times” and that “[law enforcement officers] who are engaged in duties that may expose them to high risk enforcement incidents such as search warrants, arrest warrants or felony vehicle stops, must wear soft body armor.” R. vol. 8 at 797, 807. Similarly, FBI policy requires that agents “must be armed at all times when on official duty” and that “[immediate access to the handgun and security are paramount.” R. vol. 10 at 830. Further, the policy declares that “[wjearing of body armor ... is mandatory during planned arrests, execution of search warrants and surveillances which can reasonably be expected to culminate in a confrontation with armed and dangerous subjeet(s).” Id. at 833. So if the FBI and BLM agents’ outer wear appeared intimidating, it was due to these policies and not to Agent Love’s actions.

Thus, even interpreting the facts most favorably to the Estate, we see no constitutional violation. Agent Love’s conduct— deploying twenty-two agents wearing soft body armor and carrying firearms in compliance with agency policy — was not objectively unreasonable under the circumstances. With this in mind, we of course also agree with the district court’s conclusion that the Fourth Amendment right at issue in this case wasn’t clearly established. Thus, we conclude that Agent Love was entitled to qualified immunity.-

CONCLUSION

Because the district court correctly granted qualified immunity to Agent Love, we AFFIRM the district court’s grant of summary judgment awarding Agent Love qualified immunity.

      . This region includes the southeastern corner of Utah, the southwestern corner of Colorado, the northeastern comer of Arizona, and the northwestern corner of New Mexico.

      . Before the search, a grand jury indicted Dr. Redd on one count of "receivfing], concealing], and retain[ing] property belonging to an Indian tribal organization, with a value of more than $1,000 ... knowing such property to have been embezzled, stolen, or converted ... in violation of 18 U.S.C. § 1163 and 2.” R. vol. 1 at 201. The property referenced in the indictment was an "effigy bird pendant.” Id. Mrs. Redd was indicted for several additional counts of receiving and selling tribal property.

      . Jericca Redd's son had slept over at a friend’s house the night before, so he wasn’t home on the day of the search.

      . Dr. Redd’s questioning ended at 9:30 a.m., but Mrs. Redd’s questioning continued past then.

      . We gather that the Estate’s subtraction should have resulted in fifty-nine and not sixty-nine.

      . This does not include any of the command agents listed in the Command Locations List, but it does include "archeologists,” whom the parties also refer to as cultural specialists throughout the record. R. vol. 17 at 1041; R. vol. 7 at 773. Agent Love described the cultural specialists as employees of BLM. Seven cultural specialists ultimately assisted the search at the Redds' house. For simplicity, we don't distinguish between agents and employees in this opinion.

      . After agents took Dr. and Mrs. Redd to Monticello, but before Jericca left to drive them back to Blanding, the log shows that sixteen additional agents arrived at the Redds’ property.

      . According to the district court, the Estate brought its excessive-force claim under the Fourteenth Amendment's unreasonable-seizure provision. Along this same line, the parties assert and agree that the relevant time period was "that time during which [Dr. Redd] was seized and at home to experience the alleged unconstitutional show of force ... [which] was between the hours of 6:55 a.m. and 10:34 a.m., on June 10, 2009.” Appellant's Opening Br. at 37.

      .The Estate argues that the sign-in log is inaccurate and urges us not to rely on it in determining the number of agents. To support this claim, it points out that one agent admittedly did not sign the log until three hours after arriving at the house. From this, the Estate argues that more agents also might have failed to sign the log. We agree with the district court that one agent's signing the log late doesn't render the entire sign-in log unreliable.

      . The SWAT-team members positioned themselves outside the house after agents overheard a caller leave a threatening voice-mail message for them, but this didn’t happen until after Dr. and Mrs. Redd had left the property.

      . It simultaneously sued various governmental agencies and employees under the Federal Tort Claims Act. The district court granted summary judgment in favor of the United States in that case. Estate of Redd v. United States, 171 F.Supp.3d 1229, 1240 (D. Utah 2016) (“Defendant’s use of 12 heavily armed agents, dressed in body armor ... was reasonable and did not amount to an unconstitutional showing of force.”). The Estate’s appeal is pending in this court.

      .The Estate offers us nothing to show that Dr. Redd would have seen all or even most of these agents. He would have seen only those agents in view when he came and left. At both times, some of the agents were searching the house or interviewing Mrs. Redd. Additionally, the district court described the agents as wearing SWAT-like gear only because Jericca Redd had described their attire as similar to that shown in Agent Love's exhibit showing a SWAT agent. But the agents actually wore soft body armor as required by agency policy.

      . In the third claim of its Complaint — the one now before us on appeal — the Estate alleges that Agent Love is responsible for having "violated Plaintiff James D. Redd's rights under the Fourth Amendment of the Constitution of the United States by violating Plaintiffs’ right to be secure from excessive force.” R. vol. 2 at 388. The district court concluded that the Estate brought this claim "under only the Fourth Amendment’s prohibition on unreasonable seizures.” Redd, 2015 WL 8665348, at *9. The Estate hasn’t taken issue with the district court’s view of the claim, so we only review its decision on excessive force during Dr. Redd’s seizure.

      . "[B]ecause Fourth Amendment rights are personal rights that cannot be asserted vicariously, the Estate may recover only for the injuries Dr. Redd suffered personally.” Redd, 2015 WL 8665348, at *9 (citing Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Coleman-Johnson v. Chi., Ill. Police Officers, No. 95 C 3455, 1996 WL 417568, at *4 (N.D. Ill. July 22, 1996)) (internal footnotes omitted). So only the agents that Dr. Redd saw or would likely have seen before he left for Monticello for booking are relevant to our analysis.

      . But we denied qualified immunity against the excessive-force claims arising from the conduct of the deputies allegedly pointing firearms at children and failing to knock and announce their presence, even though no one was injured. Id. at 1197. In the present appeal, the Estate raises no corresponding claims of mistreatment of Dr. Redd.

      . Agent Love submitted several newspaper articles beginning in 2008 showing episodes involving hostility and violence directed at federal agents in southern Utah. In fact, one article mentions that a 1986 federal operation concerning archaeological items "strained relations with the federal government, which residents already regarded as arrogant and intrusive." R. vol. 18.3 at 1379. These news articles show that the agents had reason for safety concerns while executing the search warrants.

        .See, e.g., United States v. Rizzi, 221 Fed.Appx. 283, 286 (4th Cir. 2007) ("[T]he mere fact that twenty-four officers took part in the execution of the warrant did not render its execution unreasonable under the Fourth Amendment.”); United States v. Sanders, 104 Fed.Appx. 916, 922 (4th Cir. 2004) (concluding that expansive scope of search reasonably justified sending forty law enforcement officers dressed in bullet-proof vests and carrying sidearms to execute a search warrant for financial documents in an office building); Crosby v. Paulk, 187 F.3d 1339, 1343, 1348 (11th Cir. 1999) (concluding that it was reasonable for more than forty law enforcement officers to assist in executing an administrative search of a nightclub and to conduct identification checks for 400 club patrons); United States v. Simon, No. 3:10-CR-56 RM, 2010 WL 4236833, at *12 (N.D. Ind. Oct. 20, 2010) (concluding that it was reasonable for eleven armed agents wearing body armor and flak jackets to search a 4,000-square-foot house for evidence of tax fraud from the morning until 5:00 p.m.).

      . The district court dismissed the Estate’s claims that agents acted with excessive force by using harsh language to humiliate Dr. Redd, falsely accusing him of crimes, and refusing to let him use- the restroom with dignity. The Estate did not appeal this dismissal.

      . Nor is the policy afoul of our cases governing excessive force. Because "the right to arrest an individual carries with it the right to use some physical coercion to effect the arrest,” it isn't always unreasonable for officers to use their weapons to control a situation.
        Holland, 268 F.3d at 1192 (citing Thompson v. City of Lawrence, Kansas, 58 F.3d 1511, 1516 (10th Cir. 1995)).