The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Having been removed to this Court from the Superior Court of the District of Columbia ("Superior Court") by the respondent, this case is now before the Court for review of the United States Attorney's Office's refusal to certify that the defendants were acting within the scope of their employment when they sent letters that the plaintiff alleges amounted to libel and other common law torts. Although the defendants have submitted various other motions, the Court lacks jurisdiction to preside over this case if it concludes that the defendants were not acting within the scope of their employment; therefore, the Court will examine and decide only the scope of employment issue. For the reasons explained below, the Court finds that the defendants were not acting within the scope of their federal employment when they wrote and mailed the purportedly tortious letters. The defendants' Motion Asserting Their Prima Facie Case For Certification and Seeking Discovery ("Defs.' Mot. for Cert.") is therefore denied, and the case remanded to the Superior Court.*fn1
The plaintiff is a former Assistant Special Agent in Charge for the Treasury Inspector General for Tax Administration ("TIGTA"), Special Investigations and Intelligence Division ("SIID"). Complaint ("Compl.") ¶ 4. The defendants, husband and wife, are also former TIGTA employees. Id. ¶¶ 5-6; Gov't's Opp'n at 2. The plaintiff contends that Ms. Thompson, with the assistance, or at least the complicity, of her husband, drafted and distributed six letters containing "false, malicious, and misleading information" about the plaintiff. Compl. ¶ 2.
In August of 2006, Ms. Thompson made a then-anonymous complaint, which the defendants refer to as the "Hotline complaint," Defs.' Mot. for Cert. at 25, to the Department of the Treasury's Office of the Inspector General accusing the plaintiff of unlawfully accessing certain records and databases. Compl. ¶ 8; Gov't's Opp'n at 2. This hotline complaint led to an internal investigation of the plaintiff. Gov't's Opp'n at 2. Neither Ms. Thompson nor Mr. Sutkus were members of the investigative team, and neither was authorized to access the investigation files. Id. at 2-3. While the investigation was ongoing, the plaintiff began looking for another job. Id. at 3. He received an offer of employment from the United States Department of Agriculture ("USDA"), which he accepted and was scheduled to begin on September 2, 2007. Id.
Then, between August 23 and August 27, 2007, six anonymous letters were sent to the USDA disclosing facts about the TIGTA's internal investigation of the plaintiff, making allegations about the plaintiff's misconduct, and seeking to warn the USDA that hiring the plaintiff was a mistake. Id.; Compl. ¶ 9. There were apparently two different versions of letters sent. The first version, signed "A Very Concerned Person," began "I am writing this letter to inform you that the USDA is making a grave error by hiring Special Agent . . . Armstrong to work in the Office of Investigations." Compl., Exhibit ("Ex.") 1. After providing details of the TIGTA internal investigation, the letter continued: "Unfortunately for the USDA, Harry is now a liability to your agency," Id., Ex. 1, and concluded, "I guess it is true what they say about the government. Instead of dealing with the problem, you pass the problem onto [sic] someone else. Well I guess Harry is your problem now."*fn3 Id., Ex. 1. The second version of the letter also advised the USDA: "If your agency chooses to conduct a background investigation or contact Mr. Armstrong's supervisor or colleagues, you will find that details of his misconduct are well known by many." Id., Ex. 1. After its receipt of the letters, the USDA rescinded the plaintiff's employment offer. Gov't's Opp'n at 3.
During the course of the plaintiff's initial lawsuit regarding this matter, in which he sued the Department of the Treasury for violations of the Privacy Act, see Armstrong v. Geithner, 610 F. Supp. 2d 66 (D.D.C. 2009), Ms. Thompson admitted that she had sent the letters to the USDA. Gov't's Opp'n at 3; Compl. ¶¶ 9-10. It is unclear how Ms. Thompson came to learn the details she disclosed in the USDA letters, see Compl. ¶¶ 12-14, although the defendants contend that Ms. Thompson pieced together the relevant information from a fellow agent, observation, inference, and rumor. Defs.' Mot. for Cert. at 7. Mr. Sutkus has also admitted that he was aware that his wife sent the letters to the USDA, Gov't's Opp'n at 3, but has denied that he assisted Ms. Thompson in preparing or sending either the initial TIGTA complaint or the USDA letters. Compl. ¶¶ 19, 23.
After the plaintiff filed his complaint in the Superior Court initiating suit against the defendants, the defendants requested certification from Rudolph Contreras, Chief of the Civil Division of the United States Attorney's Office for the District of Columbia, that they were acting within the scope of their employment as TIGTA employees at all times relevant to the plaintiff's claims. Gov't's Opp'n at 8. On October 8, 2009, Mr. Contreras, after examining the complaint, the defendants' request for certification and its attachments, and the defendants' testimony in Armstrong v. Geithner, concluded that the defendants were not acting within the scope of their employment when the alleged torts were committed. Id.; Defs.' Mot for Cert. at 5. After a procedural misstep by the defendants, see Armstrong v. Thompson, et al., Civil Action 09-2086 (RBW) (D.D.C. May 19, 2010) (Order), the United States properly removed the case from the Superior Court to this Court for review of Mr. Contreras's denial of the defendants' scope of employment certification.
Under the Westfall Act (the "Act"), 28 U.S.C. § 2679 (2006), federal employees are immune from common law tort claims arising out of acts undertaken in the course of their official duties.*fn4 Wuterich v. Murtha, 562 F.3d 375, 377 (D.C. Cir. 2009); Majano v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006). "[W]hen a federal employee is sued for a wrongful or negligent act, the United States Attorney General, or by designation the United States Attorney in the district where the claim is brought, may certify that the employee was acting within the scope of his or her employment." Stokes, 327 F.3d at 1212 (citing 28 U.S.C. § 2679(d)(1) and 28 C.F.R. § 15.3(a)). Upon the Attorney General's or his designee's certification, the employee is dismissed from the action, and the United States is substituted as the defendant in place of the employee. Osborn v. Haley, 549 U.S. 225, 229-30 (2007). If, however, the Attorney General or his designee "has refused to certify scope of office or employment under [the Act,] the employee may at any time before trial petition [a federal district] court to find and certify that the employee was acting within the scope of his [or her] office or employment." 28 U.S.C. § 2679(d)(3). If, after the district court's review, the court determines the employee acted within the scope of her employment, the United States must be substituted as the defendant. Id. Alternatively, if the court concludes the employee acted outside the scope of his or her federal employment, "the action or proceeding shall be remanded to the State court." Id.
The district court may permit limited discovery regarding Westfall certifications and may hold an evidentiary hearing to resolve a material factual dispute regarding the scope of the defendant's employment, Stokes, 327 F.3d at 1214, but not every complaint will warrant further inquiry into the scope of employment issue. Id. at 1216. "[T]here is no right to even limited discovery in a Westfall Act case unless and until a [movant] has made allegations sufficient to rebut the Government's certification" decision. Wuterich, 562 F.3d at 382-83.
To determine whether an employee was acting within the scope of her employment under the Act, courts apply the respondeat superior law of the state in which the alleged tort occurred. Wuterich, 562 F.3d at 383 (citing Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008)); see Stokes, 327 F.3d at 1214 ("The court also has noted the scope of employment question is controlled by applicable state law."); Majano, 469 F.3d at 141 ("Scope of employment questions are governed by the law of the place where the employment relationship exists."). When required to review Westfall certifications, and their attendant scope of employment questions, stemming from events occurring in the District of Columbia, the federal courts in this jurisdiction look to the decisions of the District of Columbia Court of Appeals for guidance. See Majano, 469 F.3d at 141. '"As its framework for determining whether an employee acted within the scope of employment, the [District of Columbia Court of Appeals] looks to the Restatement (Second) of Agency (1957).'" Id. (quoting Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C. Cir. 1995)). Under the Restatement,
[A]n employee's conduct falls within the scope of employment if: (1) it is the kind of conduct 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 ...