The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Afrika Hicks, a former employee of the Office of the Sergeant at Arms for the United States Senate, brings assault, wrongful imprisonment, and intentional infliction of emotional distress claims against defendants Kimball Winn and Rick Kaufman, her former supervisors. Hicks also brings religious discrimination and retaliation claims against the Senate. Winn and Kaufman filed a government certification stating that they were acting within the scope of their employment during the alleged incidents and move to substitute the United States and to dismiss the tort claims against them for lack of subject matter jurisdiction. Because Hicks has met her burden of challenging the government's certification as to the intentional infliction of emotional distress claim, but not the assault and wrongful imprisonment claims, the motion to substitute and to dismiss will be granted in part and denied in part. The United States will be substituted for Winn and Kaufman as to the assault and wrongful imprisonment claims, and these two claims will be dismissed for lack of subject matter jurisdiction because sovereign immunity has not been waived under the Federal Tort Claims Act ("FTCA"). Limited discovery will be allowed on the defendants' scope of employment regarding the intentional infliction of emotional distress claim.
The complaint and materials to which it refers set forth the following facts relevant to the pending motion. Hicks worked as a Telecommunications Operation Specialist at the Office of the Sergeant at Arms for the United States Senate. (Compl. ¶ 10.) In a meeting, Winn and Kaufman, Hicks' supervisors, "issued . . . Hicks a termination notice with an immediate effective date." (Id. ¶ 22.) The termination notice was signed by Winn and stated that Hicks "[was] to turn in [her] Senate identification badge, keys, and any Senate equipment issued to [her] immediately" and "may take [her] personal belongings with [her] today." (Pl.'s Opp'n to Defs.' Mot. to Substitute the United States & Dismiss Count IV ("Pl.'s Opp'n"), Ex. 1 at 1.) Hicks left the meeting room to retrieve her personal possessions and returned "to turn over her Agency equipment, keys and identification badge to her supervisors." (Compl. ¶ 23.) Hicks requested a receipt, but Winn refused to provide one. (Id.) Hicks then decided to return her Senate property to the Senate's human resources department in order to obtain a receipt. (Id.) Winn and Kaufman "attempted to physically restrict" Hicks from leaving the office by "pushing [her] against the wall and physically grabbing and restraining her." (Id.) Hicks' husband, Nikkol Hicks, an officer with the Capitol Police, witnessed the defendants restraining Hicks. (Id. ¶ 24.) Later, Winn and Kaufman allegedly misused the Capitol Police internal complaint procedures to prompt an internal affairs investigation of Officer Hicks. (Id. ¶ 36.) This alleged misuse included Winn falsifying a report against Officer Hicks. (Id. ¶ 24.)
Count IV of Hicks' complaint alleges assault, false imprisonment, and intentional infliction of emotional distress claims against Winn and Kaufman. Winn and Kaufman move to substitute the United States as the defendant in Count IV and have filed a certification by the then-Chief of the Civil Division, United States Attorney's Office for the District of Columbia, stating that Winn and Kaufman were acting within the scope of their employment. Winn and Kaufman also move to dismiss Count IV for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because Hicks has not exhausted her FTCA administrative remedies and because sovereign immunity has not been waived for these alleged torts. Hicks acknowledges that sovereign immunity has not been waived under the FTCA. (Pl.'s Opp'n at 3 (stating that Hicks would "be left without recourse" if the United States is substituted for Winn and Kaufman because "as the Defendants correctly argue, the United States has not waived immunity for claims of, or arising from, torts such as assault and wrongful imprisonment").) However, Hicks maintains that Kaufman and Winn's actions were not within the scope of their employment, rendering the United States' substitution improper and the FTCA inapplicable.*fn1
DISCUSSION "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." Shuler v. United States, 448 F. Supp. 2d 13, 17 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). In reviewing the motion, a court accepts as true all of the factual allegations contained in the complaint, Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), and may also consider "undisputed facts evidenced in the record." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); see also Tootle v. Sec'y of the Navy, 446 F.3d 167, 174 (D.C. Cir. 2006) (explaining that a court may look beyond the pleadings to resolve disputed jurisdictional facts when considering a motion to dismiss under Rule 12(b)(1)). The "nonmoving party is entitled to all reasonable inferences that can be drawn in her favor." Artis, 158 F.3d at 1306 (emphasis omitted).
"The United States is immune from suit unless it waives its sovereign immunity through an act of Congress." Hayes v. United States, 539 F. Supp. 2d 393, 397 (D.D.C. 2008) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). In a suit against the United States, the plaintiff "bears the burden of proving that the government has unequivocally waived its immunity for the type of claim involved." Hayes, 539 F. Supp. 2d at 397 (citation omitted). "The [FTCA] provides . . . a waiver in civil damages actions based on 'injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]'" Id. (quoting 28 U.S.C. § 1346(b)). However, the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h).
I. WESTFALL CERTIFICATION
Courts must "independently determine whether the United States is a proper defendant" in a tort suit against federal employees. Koch v. United States, 209 F. Supp. 2d 89, 91 (D.D.C. 2002). "The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, 28 U.S.C. § 2679(d), provides that a federal employee is immune from tort liability when he is 'acting within the scope of his office or employment at the time of the incident out of which the claim arose.'" Healy v. United States, 435 F. Supp. 2d 157, 161 (D.D.C. 2006) (quoting 28 U.S.C. § 2679(d)). Under the Act, "when the Attorney General or his designee believes that a federal employee was acting within the scope of employment, he may issue a certification to that effect." Id. at 161 (citation omitted). The certification "requires the substitution of the United States for the federal employee as the defendant in the lawsuit and it converts the lawsuit into an action against the United States under the Federal Tort Claims Act." Id. (internal quotations and citations omitted). The Attorney General's certification is prima facie evidence that the employees' conduct was within the scope of their employment. Hill v. United States, 562 F. Supp. 2d 131, 135 (D.D.C. 2008).
Rule 8 requires that a complaint contain a short and plain statement of the claim showing that the plaintiff is entitled to relief. Under that liberal pleading standard, the complaint of a plaintiff challenging the certification "need only have alleged sufficient facts that, taken as true, would establish that the defendants' actions exceeded the scope of their employment." Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003). The D.C. Circuit "has made it clear that '[n]ot every complaint will warrant further inquiry into the scope-of-employment issue.' . . . Consequently, where a plaintiff fails to allege sufficient facts to rebut the certification, the United States must be substituted as the defendant because the federal employee is absolutely immune from suit." Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (quoting Stokes, 327 F.3d at 1216).
The scope of employment inquiry is governed by the law of agency as applied in the District of Columbia, where the tort allegedly occurred. See Wilson v. Libby, 498 F. Supp. 2d 74, 97 (D.D.C. 2007). In the District of Columbia, the Restatement (Second) of Agency provides the governing framework for determining whether an employee acted within the scope of employment. Id. "Under the Restatement, an employee's conduct falls within the scope of employment if: 1) it is of the kind of conduct he is employed to perform; 2) it occurs substantially within the authorized time and space limits;*fn2 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." Id. (citing Restatement (Second) of Agency § 228 (1957)).
A. Nature of conduct "[C]onduct will be of the kind the servant is employed to perform if it is 'of the same general nature as that authorized' or is 'incidental to the conduct authorized.'" Kalil v. Johanns, 407 F. Supp. 2d 94, 97 (D.D.C. 2005) (quoting Haddon v. United States, 68 F.3d 1420, 1423-24 (D.C. Cir. 1995), abrogated on other grounds by Osborn v. Haley, 549 U.S. 225 (2007)). Conduct is incidental if it is foreseeable. Haddon, 68 F.3d at 1424.
Foreseeable in this context does not carry the same meaning as it does in negligence cases; rather, it requires the court to determine whether it is fair to charge employers with responsibility for the intentional torts of their employees. To be foreseeable, the torts must be a direct outgrowth of the employee's instructions or job assignment. It is not enough that an employee's job provides an opportunity to commit an intentional tort.
Id. (internal citations and quotation marks omitted). The foreseeability inquiry requires courts "to look beyond alleged intentional torts" and "focus on the underlying dispute or controversy, not on the nature of the tort." Wilson, 498 F. Supp. 2d at 97-98 (internal quotation marks omitted). The inquiry thus "is broad enough to embrace any intentional ...