The opinion of the court was delivered by: Flannery, District Judge.
On September 27, 1997, plaintiff was discharged from his employment by
order Employees of defendant Alan Hantman, the Architect of the Capitol
("Hantman" or "AC"). He now claims, inter alia, that the discharge
deprived him of property without due process of law in violation of the
Fifth Amendment to the U.S. Constitution, U.S. Const. Amend. V, as well
as the provisions of the Architect of the Capitol Human Resources Act
(hereinafter "HRA"), 40 U.S.C. § 166b-7 (West Supp. 1999), Chapter
752 of the AC Personnel Manual, and the procedural manchites of
5 U.S.C. § 7501 et seq. (1994), alleged to be incorporated by
reference into the AC's personnel procedures. He also claims that the
defendants tortiously interfered with his employment in violation of the
law of the District of Columbia.*fn1 In addition to Hantman, plaintiff
sues eight present and former co-employees who were involved in some
fashion in his termination proceeding. Each is sued solely in his or her
individual capacity. Plaintiff seeks damages, as well as reinstatement
and declaratory relief.
The facts are taken from plaintiffs allegations in his Amended
Complaint and documents referenced therein. Only the facts relevant to
plaintiffs tort and due process claims are mentioned.
From January 22, 1992 to September 27, 1997, plaintiff was employed as
a custodial cleaner in the United States Senate Restaurants. The Senate
Restaurants are under the administration of the Office of the Architect
of the Capitol ("OAC"), see 2 U.S.C. § 1301(5) (1994), which is also
responsible generally for the care and management of Capitol buildings
and grounds. 40 U.S.C. § 163 (1982). Defendant Patrick Taylor
("Taylor") is the Chef of the Senate Restaurant and plaintiffs
"first-line" supervisor. The "first-line" supervisor is apparently the
one who supervises an employee most directly. Defendant Carl Smith
("Smith") is plaintiffs second-line supervisor. Defendant Lynne Theiss
("Theiss") was previously the Director of the Senate Restaurants and
plaintiffs third-line supervisor.
Between 1994 and 1996, plaintiff was subjected to a series of
disciplinary actions which culminated in the termination of his
employment. The first alleged disciplinary action occurred on September
21, 1994, when Smith gave plaintiff a warning "to take immediate action
to correct . . . work habits which, in some instances, were creating
serious accident hazards to other members of the kitchen staff." Am.
Compl. ¶ 43. On September 13, 1995, Smith issued plaintiff a
"Proposal of Official Reprimand" for "failure" on August 8, 1995 "to
perform assigned duties in a safe and satisfactory manner, and for
unacceptable conduct and behavior, in violation of the ethical conduct
standards contained in Section 5.1 of the `Standards of Conduct of the
Architect of the Capitol.'" Am.Compl. ¶ 44. On November 6, 1995,
Smith instituted another "Official Reprimand" "for . . . failure to
perform assigned duties in a safe and satisfactory manner, and for
unacceptable conduct and behavior." Am. Compl. ¶ 45. On April 24,
1996, Taylor issued a "Proposal to Suspend" based on plaintiffs "failure
to perform assigned duties in a safe and satisfactory manner; and
unacceptable conduct and behavior." Am.Compl. ¶ 46. On July 19 and
22, 1996, respectively, defendant Theiss and plaintiff executed an
Alternate Discipline Agreement providing for a "paper suspension."
On or around November 7, 1996, Taylor recommended in an internal
memorandum that plaintiffs employment be terminated for continuing
performance problems. On January 23, 1997, Smith issued a "Proposal to
Terminate" plaintiffs employment based on a number of incidents which
Taylor had noted in a private log he had maintained since July 23, 1996.
The letter was sent to plaintiff as notice of the proposed action.
On February 28, 1997, Theiss issued a letter concurring with the proposed
action (again sent to plaintiff) and the action was referred to a hearing
officer, defendant Robert Miley ("Miley"), for a formal hearing.*fn2
Pl.App.N. On July 1, 1997, the hearing was conducted. John
Clifford, a private attorney, represented the OAC.
Plaintiff was also represented by counsel. By the end of the day,
Clifford had presented his evidence, which consisted largely of testimony
from Taylor, relying heavily on his log. After Clifford gave his oral
summation, plaintiffs counsel was directed to present his "summation" by
Following receipt of plaintiffs written summation, Miley made inquiries
to defendant Kevin Mulshine ("Mulshine"), the Chief Employment Counsel,
apparently regarding how to address the issues plaintiff had raised in his
summation. Mulshine responded in a letter dated July 28, 1997,
instructing Miley, in part, that
a hearing officer's responsibility is to address
whether the proposed termination is supported by the
information produced at the hearing. The rule of
common sense prevails; rules of evidence and burdens
of proof that must be followed by a judicial body do
not restrict the hearing officer's conduct.
Pl Appendix O; Am.Compl. ¶ Subsequently, Miley issued findings of
fact and a recommendation that the plaintiff be discharged.*fn3 letter
dated September 18, 1997, Hantman adopted Miley's recommendation and
directed that plaintiffs employment be terminated effective September
A. Motion to Substitute United States As Defendant In Tort Claim
In connection with plaintiffs sixth claim, alleging tortious
interference with employment in violation of Section 921 of Title 11 of
the District of Columbia Code, defendants have moved pursuant to
28 U.S.C. § 2679 (1994), a provision of the FTCA, to have the United
States substituted in the place of the eight defendants sued in their
individual capacities, arguing that such substitution is mandatory
because defendants were acting within the scope of their employment.
Defendants do not move for 96
substitution of Hantman, who is sued only in his official capacity.
The FTCA provides a general waiver to the United States' sovereign
immunity to tort liability, with certain specified exceptions.
28 U.S.C. § 2680 (1994) (listing exceptions). In 1988, Congress
amended the FTCA with passage of the Federal Employees Liability Reform
and Tort Compensation Act ("Liability Reform Act"). As amended by the
Liability Reform Act, section 2679 of the FTCA provides that an action
against the United States is the exclusive remedy for any damages claim
arising out of the "negligent or wrongful act[s] or omission[s]" of
federal employees done while acting within the scope of their
employment. 28 U.S.C. § 2679(b)(1) (1994). Section 2679 thus gives
federal employees absolute immunity from tort liability for acts done in
the scope of their employment. Simpkins v. Shalala, 999 F. Supp. 106, 119
Section 2679 also provides a specific procedure to implement its
immunity mandate. When a federal employee is sued in tort, the Attorney
General must certify whether the employee was acting within the scope of
his or her employment at the time of the allegedly tortious act.
28 U.S.C. § 2679(d)(1). Upon certification, the United States is
substituted as the sole defendant and any tort claim against the
individual arising out of the same "subject matter" is precluded. Id.*fn4
Substitution of the United States is mandatory even if the tort claim is
one of those for which the government has not waived its sovereign
immunity. See U.S. v. Smith, 499 U.S. 160, 165, 111 S.Ct. 1180, 113
L.Ed.2d 134 (1991).
It is established that a tortious interference with employment claim
falls within the broad set of state law tort claims subject to the
substitution provision of the FTCA. See Simpkins, 999 F. Supp. at 119
(applying substitution to claim for interference with contractual,
economic, and business relations); Claasen v. Brown, No. Civ. A.
94-1018, 1996 WL 79490 (D.D.C. Feb.16, 1996) (applying substitution to
claim for interference with employment contract); Aviles v. Lutz,
887 F.2d 1046, 1048 (10th Cir. 1989) (applying § 2679 to claim for
tortious interference with employment rights). Thus, the claim is subject
to substitution where employees have been certified to be acting in the
scope of their employment.
The Attorney General, pursuant to 28 U.S.C. § 510 (1994), has
delegated certification authority to the United States Attorneys.
28 C.F.R. § 15.3. In this case, the U.S. Attorney has certified that
the defendants sued in their individual capacity were acting within the
scope of their employment at the time of the alleged incidents. The
statutory requirements for substitution are therefore satisfied.
Nevertheless, defendants' motion must be denied in part. Although
substitution is appropriate insofar as plaintiffs claim seeks damages, it
is inappropriate insofar as plaintiffs claim seeks injunctive or
declaratory relief. Section 2679(b)(1) specifies what sort of claims may
not be brought against individual employees, and states in relevant part
28 U.S.C. § 2679(b)(1) (1994) (emphasis added). This langnage,
providing for preclusion of actions "for money damages" logically implies
that an action for injunctive or declaratory relief would not be
precluded. It is true that the substitution provision, § 2679(d)(i),
does not itself contain this limiting language. It only refers to
substitution for any action arising out of "the claim."
28 U.S.C. § 2679(d)(1). However, "the claim" is best understood in
reference to the limiting language in the earlier provision. But see
Simpkins v. Shalala, 999 F. Supp. at 119 (holding that, even where
plaintiff sought injunctive and declaratory relief, "[a] plaintiffs sole
remedy for action taken by employees acting within the scope of their
duties is against the government, even if the government would not be
liable due to sovereign immunity."). Accordingly, defendants' motion to
substitute is granted as to the claim for damages and denied as to the
injunctive and declaratory relief.
C. Motion To Dismiss — Standard of Review
Dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim is proper only when it appears beyond doubt that the plaintiff can
prove no set of facts which would entitle him to relief. See
Tele-Communications of Key West, Inc. v. U.S., 757 F.2d 1330, 1334
(D.C.Cir. 1985). The court must accept as true all well-pleaded factual
allegations and draw all reasonable inferences in favor of the
plaintiff. See Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996): A
motion to dismiss to dismiss for lack of jurisdiction pursuant to Rule
12(b)(1) is reviewed' under a similar standard, where the motion
challenges the sufficiency of the allegations of subject matter
jurisdiction. See Pitney Bowes Inc. v. U.S. Postal Service,
27 F. Supp.2d 15, 19 (D.D.C. 1998). The burden of proving jurisdiction is
upon the plaintiff. Id.
When reviewing a motion under Fed.R.Civ.P. 12(b)(6), if "matters
outside the pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56. . . ." Fed.R.Civ.P. 12(b). However, where a document
is referred to in the complaint and is central to plaintiffs claim, such
a document attached to the motion papers may be considered without
converting the motion to one for summary judgment. Greenberg v. The Life
Insurance Company of Va., 177 F.3d 507, 514 (6th Cir. 1999). The Court
finds that Chapter 752 of the Personnel Manual and the various letters
and materials produced in the course of plaintiffs discharge ...