Court blocks Marine's suit against Murtha

WASHINGTON, April 14 (UPI) -- A U.S. appeals court panel in Washington ruled Tuesday that Rep. John Murtha, D-Pa., is immune from suit for comments made about a Marine in Iraq.

Marine Staff Sgt. Frank Wuterich sued Murtha for alleged slander after he called actions by Wuterich's squad in Haditha, Iraq, a "massacre." A federal judge refused to grant Murtha immunity under the Westfall Act, even though the Justice Department had certified him as a covered U.S. employee.

The department certified Murtha "was acting within the scope of his office or employment" when the statements were made. The act says upon such certification, the United States must be substituted as defendant -- and the case usually dismissed under sovereign immunity.

The judge refused to rule on immunity immediately, instead telling Murtha he had to produce evidence for discovery.

But the three-judge appeals panel ruled the law "law is clear that limited discovery is permitted in a Westfall Act case only when a plaintiff" alleges "sufficient facts" that if true would show the defendant exceeded the scope of his employment.

"Because Wuterich has failed to meet even this minimal pleading burden," the appeals panel said, it threw out the judge's ruling and sent the case back down, ordering the United States be substituted for Murtha and the case dismissed.

Wuterich could still ask the full U.S. appeals court in Washington to rehear the case, or ask the U.S. Supreme Court for reviews.