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GREENE v. NGUYEN

September 7, 2005.

JAMES E. GREENE, Plaintiff,
v.
HUNG V. NGUYEN and ADRIENNE CHUTE, Defendants.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

  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.

  II. BACKGROUND

  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 Defs.' Mot.

  III. ANALYSIS

  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 Westfall Act

  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 statute provides:
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 proper defendant").
  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 Restatement provides:
[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. 2004).
 
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 ...

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