United States District Court, D. Columbia
September 7, 2005.
JAMES E. GREENE, Plaintiff,
HUNG V. NGUYEN and ADRIENNE CHUTE, Defendants.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING THE DEFENDANTS' MOTION TO DISMISS
This matter comes before the court on the defendants' motion to
dismiss for lack of subject matter jurisdiction. The plaintiff
filed the instant action against Hung V. Nguyen ("Nguyen") and
Adrienne Chute ("Chute") on January 26, 2005, in the Superior
Court for the District of Columbia, for defamation and false
light invasion of privacy. The defendants removed the action to
this court based on federal question jurisdiction and
subsequently filed a certification, substituting the United
States for the individual defendants. Because the court concludes
that the United States is properly substituted for Nguyen and
Chute as the sole defendant, and because the United States has
sovereign immunity against the plaintiff's claims, this court
lacks subject matter jurisdiction and accordingly grants the
defendants' motion to dismiss.
Defendant Nguyen, the plaintiff's supervisee at the United
States Department of Education, filed a grievance against the plaintiff alleging that
the plaintiff had sexually harassed him. Def.'s Reply to Pl.'s
Opp'n to Def.'s Mot. to Dismiss ("Def.'s Reply"), Ex. 1
("Informal Dispute Resolution Center Intake Form" or the
"grievance"); see also Compl. ¶¶ 1, 4. Defendant Chute, a shop
steward with the American Federation of Government Employees,
AFL-CIO Local 2607 (the "Union"), represented Nguyen in the
grievance proceedings. Not. of Removal ¶ 4; see also Pl.'s
Opp'n at 3. The plaintiff alleges that during the grievance
proceedings, Nguyen and Chute made defamatory remarks about the
plaintiff's sexual conduct. Compl. at 1. The plaintiff then filed
suit against Nguyen and Chute in the Superior Court for the
District of Columbia ("Superior Court") alleging defamation and
false light invasion of privacy. See generally Compl. The
United States Attorney's office then certified, pursuant to the
Federal Employees Liability Reform and Tort Compensation Act of
1988 (the "Westfall Act"), that the defendants' alleged conduct
took place within the scope of their employment with the federal
government. Defs.' Mot. to Dismiss ("Defs.' Mot."), Ex. 1. On
February 25, 2005, the defendants removed the action to this
court on the basis of federal question jurisdiction. Not. of
Removal at 1. After removing the action from the Superior Court,
the defendants filed a motion to dismiss for lack of subject
matter jurisdiction based on sovereign immunity. See generally
A. Legal Standard for a Motion to Dismiss
Federal courts are courts of limited jurisdiction and the law
presumes that "a cause lies outside this limited jurisdiction."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994); St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 288-89 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.
Cir. 2004) (noting that "[a]s a court of limited jurisdiction, we
begin, and end, with an examination of our jurisdiction").
Because "subject-matter jurisdiction is an `Art. III as well as
a statutory requirement[,] no action of the parties can confer
subject-matter jurisdiction upon a federal court.'" Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003)
(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de
Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1),
the plaintiff bears the burden of establishing that the court has
subject-matter jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). The court may dismiss a complaint for
lack of subject-matter jurisdiction only if "`it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.'" Empagran S.A. v.
F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Because subject-matter jurisdiction focuses on the court's
power to hear the claim, however, the court must give the
plaintiff's factual allegations closer scrutiny when resolving a
Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)
motion for failure to state a claim. Macharia v. United States,
334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C.
2001). Moreover, the court is not limited to the allegations
contained in the complaint. Hohri v. United States,
782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Instead, to determine whether it has jurisdiction over
the claim, the court may consider materials outside the
pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992). B. Legal Standard for Immunity of Federal Officers Under the
The Westfall Act confers immunity on federal employees "by
making [a Federal Tort Claims Act ("FTCA")] action against the
Government the exclusive remedy for torts committed by Government
employees in the scope of their employment." United States v.
Smith, 499 U.S. 160, 163 (1991); 28 U.S.C. § 2679(b)(1). The
Upon certification by the Attorney General 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, any civil action or
proceeding commenced upon such claim in a United
States district court shall be deemed an action
against the United States under the provisions of
this title and all references thereto, and the United
States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1). In a case where the Attorney General, or
by designation the United States Attorney in the district where
the claim is brought, files a certification that the original
defendant was acting within the scope of his or her employment,
such certification has the following consequences: (1) if the
suit originated in state court, then the Attorney General or his
or her designee is required to remove it to federal court; (2)
the United States shall be substituted as the sole defendant; and
(3) if the plaintiff has not brought suit pursuant to the FTCA,
the suit converts to one against the United States under the
FTCA. 28 U.S.C. § 2679(d)(2); 28 C.F.R. § 15.3(a) (2002); Haddon
v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995). The
certification is conclusive for purposes of removal; however, the
substitution and conversion consequences are subject to judicial
review. That is, they are contingent on whether the court finds
that the original defendant acted within the scope of his or her
employment. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417
434 (1995) (stating that "[t]he Attorney General's certification
that a federal employee was acting within the scope of his or her
employment . . . does not conclusively establish as correct the substitution of the United States as
defendant in place of the employee"); Haddon, 68 F.3d at 1423
(noting that "the federal court may independently determine
whether the employee acted within the scope of employment and,
therefore, whether to substitute the federal government as the
To determine whether a federal employee was acting within the
scope of his or her employment, a federal court must apply the
law of the state where the tortious act occurred. Tarpeh-Doe v.
United States, 28 F.3d 120, 123 (D.C. Cir. 1994); Garber v.
United States, 578 F.2d 414, 415 (D.C. Cir. 1978). The law of
the District of Columbia, which is where the alleged tortious
acts occurred, is drawn from the Restatement (Second) of Agency
(the "Restatement"), section 228. Haddon, 68 F.3d at 1423. The
[c]onduct of a servant is within the scope of
employment if, but only if: (1) it is of the kind he
is employed to perform; (2) it occurs substantially
within the authorized time and space limits; (3) it
is actuated, at least in part, by a purpose to serve
the master; and (4) if force is intentionally used by
the servant against another, the use of force is not
unexpected by the master.
Restatement (Second) of Agency § 228. When the Court reviews the
validity of a certification filed by the Attorney General or his
or her designee, the certification is entitled to "prima facie
effect" that the defendants acted within the scope of their
employment. Kimbro v. Velten, 30 F.3d at 1509 (D.C. Cir. 1994)
(internal citations omitted). The burden then shifts to the
plaintiff to prove by a preponderance of the evidence that the
defendants acted outside the scope of their employment. Id. at
1509; Schneider v. Kissinger, 310 F. Supp. 2d 251
, 264 (D.D.C.
C. Nguyen and Chute Were Acting Within the Scope of Their
Employment When They Allegedly Made Defamatory Statements
The defendants' Westfall certification establishes a
presumption that Nguyen and Chute are immune from liability because they were acting within the
scope of their employment when the allegedly tortious conduct
occurred. See Kimbro, 30 F.3d at 1509; Schneider v.
Kissinger, 310 F. Supp. 2d 251
, 264 (D.D.C. 2004). Accordingly,
the plaintiff now has the burden of rebutting this presumption by
proving by a preponderance of the evidence that the defendants
acted outside the scope of their employment. Kimbro,
30 F.3d at 1509.
Precedent compels this court to interpret a broad range of
conduct as falling within the scope of employment under section
228 of the Restatement.*fn1 In Lyon v. Carey, for example,
the defendant, a mattress deliveryman, had a dispute with the
plaintiff over whether the plaintiff could pay for a mattress
using a personal check. 533 F.2d 649 (D.C. Cir. 1976). The
defendant's employer had instructed him only to accept payment in
cash. Id. at 652. During the dispute, the defendant followed
the plaintiff to her bedroom and raped and beat her. Id. at
651-652. The court found that this conduct was within the scope
of the defendant's employment. Id. at 651. It explained,
"deliverymen, endeavoring to serve their masters, are likely to
be in situations of friction with customers, and . . . these
foreseeable altercations may precipitate violence . . . even
though the particular type of violence was not in itself
anticipated or foreseeable." Id.
Similarly, in Johnson v. Weinberg, the defendant, a
laundromat employee, entered into a dispute with the plaintiff, a
laundromat patron, when the plaintiff accused the defendant of
stealing his clothing when removing it from the washing machine
as his job required. 434 A.2d 404, 406 (D.C. 1981). As a result
of this dispute, the defendant shot the plaintiff. Id. The
court ruled that the defendant was acting within the scope of his
employment at the time the incident occurred. Id. at 408-09.
Lyon and Johnson "mark the outer limits of scope of
employment." Haddon, 68 F.3d at 1425 (citing Boykin v. Dist.
of Columbia, 484 A.2d 560, 563 (D.C. 1984)). Given the expansive
definition of scope of employment that the Lyon and Johnson
courts articulate, this court determines that the facts of the
instant case fall well within the bounds of the scope of
employment inquiry. The defendants' alleged conduct arose
directly out of a work-related dispute and was of the kind that
the defendants were employed to perform, satisfying section
228(a) of the Restatement. Chute's role in the grievance process
was to represent Nguyen in his sexual harassment complaint, Not.
of Removal ¶ 4, and all of the conduct giving rise to Nguyen's
grievance against Greene occurred at work. Grievance at 1-2.
The plaintiff contends that "the statements made by Defendants
are not the direct outgrowth of any job related instruction or
job assignment[.]" Pl.'s Opp'n at 3. He further contends that
"Defendants [sic] conduct was self-serving with the sole purpose
of discrediting Plaintiff at his place of employment." Id. at
4. As the court determined in Schneider v. Kissinger, however,
"the plaintiff's theory that [the alleged conduct] falls outside
the scope of a federal official's employment misconstrues `the
scope' of this term." 310 F. Supp. 2d at 265. Only when the
conduct in question bears an extremely attenuated relation to the
defendant's job duties have courts found that the conduct was not
of the kind that the defendant was employed to perform. See
Haddon, 68 F.3d at 1422 (applying District of Columbia law, the
D.C. Circuit determined "the alleged tort completely unrelated to
the [defendant's] official duties and therefore outside the scope
of his employment"); Boykin, 484 A.2d at 564 (concluding that because "there is no suggestion here . . . that the employee's
conduct was the outgrowth of any action undertaken in the
employer's behalf" and "was utterly without relation to the
service which he was employed to render[,]" the defendant was
acting outside the scope of is employment) (citation and internal
quotation marks omitted); Penn Cent. Transp. Co. v. Reddick,
398 A.2d 27, 29-30, 31 (D.C. 1979) (determining that the
defendant's attack on a taxi driver while the defendant traveled,
off duty, from a job assignment to his place of employment,
marked a "departure from his master's business . . . of such a
marked and decided character" as to break the master-servant
relationship) (citations omitted).
Given the expansive definition of conduct that falls within the
scope of employment, the plaintiff fails to meet his burden of
demonstrating that the defendants' actions were not of the kind
that the defendants were employed to perform, as required by
section 228(a) of the Restatement, or that the alleged conduct
was not actuated to any degree by a purpose to serve the master,
as required by section 228(c) of the Restatement. Moreover,
because the plaintiff fails to allege that the defendants'
conduct did not occur at the workplace or during work hours, his
position is undercut by section 228(b) of the Restatement, which
establishes that conduct that "occurs substantially within the
authorized time and space limits" may give rise to a
determination that the conduct falls within the scope of
employment. RESTATEMENT (SECOND) OF AGENCY § 228(b).
One point remains to be addressed. Instead of filing a motion
to dismiss the individual defendants and substitute the United
States in their place, the defendants presumptively and
prematurely identified the United States as the sole party
defendant in their motion to dismiss. Defs.' Mot. at 1. Whereas
Federal Rule of Civil Procedure 25(d) allows for the automatic substitution of parties that is, substitution of parties
without the need to request permission from the court*fn2
parties requesting substitution under the Westfall Act are
required to make a motion to the court. 28 U.S.C. § 2679. A party
may not proceed on the presumption that the United States may be
substituted in the individual defendants' place until the court
rules on such a motion. Further, a party's pleadings may be
stricken from the record if proper procedure is not followed.
FED. R. CIV. P. 12(f). The court, however, will not strike the
motion to dismiss because such action would cause delay and
compromise judicial efficiency. Therefore, the court itself
substitutes the United States in the place of the individual
D. Legal Standard for Sovereign Immunity Under the FTCA
The FTCA "grants federal district courts jurisdiction over
claims arising from certain torts committed by federal employees
in the scope of their employment, and waives the government's
sovereign immunity from such claims." Sloan v. Dep't of Hous. &
Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001) (citing
28 U.S.C. §§ 1346(b) & 2674). To protect the government from liability
"that would seriously handicap efficient government operations,"
the waiver of sovereign immunity is subject to several
exceptions. Beins v. United States, 695 F.2d 591, 611 (D.C.
Cir. 1982) (internal quotations omitted); 28 U.S.C. § 2680. If
any one of the exceptions applies, the district court lacks
subject matter jurisdiction. 28 U.S.C. § 2680; Sloan,
236 F.3d at 759.
One exception to the FTCA's sovereign immunity waiver is the
intentional-torts exception, which provides that the United States retains
sovereign immunity for any "claim[s] arising out of assault,
battery, false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit or interference with
contract rights." 28 U.S.C. § 2680(h). Given its "sweeping
language," the exception excludes claims that sound in negligence
but "aris[e] out of" an intentional tort. Kugel v. United
States, 947 F.2d 1504, 1507 (D.C. Cir. 1991) (quoting United
States v. Shearer, 473 U.S. 52, 55 (1985)).
To assure itself of subject matter jurisdiction, the court must
determine the basis for a plaintiff's FTCA claims, keeping in
mind that "[a] litigant cannot circumvent the [FTCA] by the
simple expedient of drafting in terms of negligence a complaint
that in reality is a claim as to which the United States remains
immunized." Id., 753 F.2d at 1160 n. 16 (quoting Johnson v.
United States, 547 F.2d 688, 691-92 (D.C. Cir. 1976)). Toward
that end, the court "must review the complaint to determine what
actions allegedly caused the injuries." Cope v. Scott,
45 F.3d 445, 448 (D.C. Cir. 1995) (applying the discretionary-function
exception); see also Kugel, 947 F.2d at 1507 (noting in
applying the intentional-tort exception that the court "must
scrutinize the alleged cause of [an FTCA plaintiff's] injury").
Although the court must accept the plaintiff's version of the
facts as true, the court need not accept "the plaintiff's
characterization of the facts." Fisher Bros. Sales, Inc. v.
United States, 46 F.3d 279, 286 (3d Cir. 1995) (emphasis in
original); see also Gen. Dynamics Corp. v. United States,
139 F.3d 1280, 1283 (9th Cir. 1998) (citing Fisher Bros. with
E. The United States Is Immune From This Suit
Among the claims excepted from the FTCA's waiver of sovereign
immunity are claims of arising out of libel or slander,
28 U.S.C. § 2680(h), including defamation claims, Gardner v. United States, 213 F.3d 735, 738 n. 1 (D.C. Cir. 2000).
Accordingly, the plaintiff's defamation claim is barred. Because
the plaintiff's false light invasion of privacy claim arose out
of the conduct on which the defamation claim is based
specifically, statements regarding the plaintiff's sexual
behavior that Nguyen and Chute allegedly made during Nguyen's
grievance against the plaintiff claiming sexual harassment, see
generally Compl. that claim is barred as well, Koch v. United
States, 209 F. Supp. 2d 89, 94-95 (D.D.C. 2002) (holding that
"if a plaintiff bases a claim on conduct that does not constitute
a claim `arising out of' a tort specified in § 2680(h), then the
plaintiff's suit is not barred") (quoting Truman v. United
States, 26 F.3d 592, 594 (5th Cir. 1994). Because the United
States is immune from the plaintiff's claims, the court lacks
subject matter jurisdiction. Accordingly, the court grants the
defendant's motion to dismiss.
For all the foregoing reasons, the court grants the defendants'
motion to dismiss. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 7th day
of September 2005.
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