The opinion of the court was delivered by: SPORKIN
The matter is before the Court on the United States' motion to dismiss and on pro se Plaintiff's opposition thereto. The Court heard oral argument on May 20, 1997.
Plaintiff was an employee of the Interstate Commerce Commission (ICC). His second-line supervisor was the defendant Anthony Jacobik. In 1993, Plaintiff was subject to a reduction in force. He subsequently received an offer of employment with another federal agency. The offer was conditioned on his receiving a security clearance. As part of the clearance process, an Office of Personnel Management (OPM) investigator interviewed Plaintiff's former co-workers at ICC, including Jacobik. Plaintiff claims that the supervisor's answers to the OPM questions were defamatory. Although Plaintiff was eventually accepted for the new position, he claims that the supervisor's responses set off a chain of events which in turn caused his clearance to be delayed for approximately five months.
Jacobik has not responded to Plaintiff's suit. Rather, the United States has entered an appearance, certifying that the supervisor was acting within the scope of his employment as an employee of the United States when he responded to the OPM interviewer's questions. Accordingly, the United States claims that it must be substituted as the exclusive defendant pursuant to 28 U.S.C. § 2679. The Government further asserts that pursuant to 28 U.S.C. § 2680 (h) it can only be sued for tort under the Federal Tort Claims Act (FTCA). Since the FTCA does not allow the United States to be sued for defamation, the United States moves that this suit be dismissed for lack of subject-matter jurisdiction.
When reviewing a motion to dismiss, a court must accept all of the complainant's well-pleaded allegations as true and construe them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). A court may dismiss a complaint on the pleadings only if it is clear that relief cannot be granted under any set of facts that could be proven consistent with the allegations. See Hishon v. King and Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Where questions of subject-matter jurisdiction are raised, the Court may consider matters outside of the pleadings. See, e.g. Gordon v. National Youth Work Alliance, 218 U.S. App. D.C. 337, 675 F.2d 356, 362-63 (D.C. Cir. 1982).
A. The United States should be substituted as the sole defendant
Title 28 U.S.C. § 2679 generally protects federal employees from personal liability for tortious actions if they were acting within the scope of employment when committing the alleged tort. In such instances, the United States is substituted as the sole defendant and the action is pursued under the FTCA. 28 U.S.C. § 2679(d)(2).
The FTCA, pursuant to 28 U.S.C. § 2679(d)(1), allows the Attorney General to certify that 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." In this case, the United States Attorney for the District of Columbia, through the Chief of the Civil Division, has certified that defendant Jacobik acted within the scope of his authority as an employee of the United States at the time of the alleged incidents.
The Government's certification creates a rebuttable presumption that Jacobik was acting within the scope of his employment. Kimbro v. Velten, 308 U.S. App. D.C. 134, 30 F.3d 1501, 1509 (D.C. Cir. 1994). This court may still "determine independently whether the employee acted within the scope of employment." Haddon v. United States, 314 U.S. App. D.C. 369, 68 F.3d 1420, 1423 (D.C. Cir. 1995). This is a question of District of Columbia law. Id.
Plaintiff's only attempt to rebut the presumption is his assertion that "providing materially false information . . . to a federal background investigator cannot conceivably fall within the 'scope of employment.'" Plaintiff's Motion to Strike at 6. In other words, Plaintiff argues that an intentional tort cannot be committed within the scope of employment. This is not consistent with the precedent in this Circuit.
In Haddon, the D.C. Circuit examined the "distinction between intentional torts that are a 'direct outgrowth' of an employee's instructions or job assignment and those that are simply made possible by the employee's job." ...