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Aviles-Wynkoop v. Neal

United States District Court, District of Columbia

August 27, 2013

ELIZABETH AVILES-WYNKOOP, Plaintiff,
v.
KEIA NEAL et al., Defendants

Page 16

ELIZABETH AVILES-WYNKOOP, Plaintiff, Pro se, ALEXANDRIA, VA.

For GAIL ROBERTSON, in their official capacities as employees of the U.S. Department of Housing and Urban Development, KEIA NEAL, in their official capacities as employees of the U.S. Department of Housing and Urban Development, Defendants: Wynne Patrick Kelly, U.S. Attorney's Office, Civil Division, Washington, DC.

OPINION

Page 17

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

Plaintiff, an employee at the Department of Housing and Urban Development (" HUD" ), seeks a temporary restraining order (" TRO" ) and a preliminary injunction against her supervisors at HUD. Originally, plaintiff filed a pro se complaint, a request for a temporary restraining order, and a request for a preliminary injunction in D.C. Superior Court on August 6, 2013. The Chief of the Civil Division, Office of the United States Attorney for the District of Columbia, filed a Westfall certification under 28 U.S.C. § 2679(d), conclusively affirming that the defendants were employees of the government and were acting within the scope of their employment at the time of plaintiff's allegations. As a result, defendants removed the case to this Court pursuant to 28 U.S.C. § 1442(a)(1) & 1446 and 28 U.S.C. § 2679(d)(2). Also as a result of the Westfall certification, and pursuant to 28 U.S.C. § 2679(d)(2), the

Page 18

United States of America will be substituted for defendants as the defendant in this case.

Defendants argue in their response to plaintiff's request for a TRO that this Court lacks subject-matter jurisdiction over plaintiff's claims. Def.'s Opp'n 5-13. Federal courts are courts of limited jurisdiction and it is presumed that " a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448, 361 U.S.App. D.C. 6 (D.C. Cir. 2004) (noting that " [a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction" ). Accordingly, a federal court has a duty to notice a failure of subject-matter jurisdiction on its own motion at any time during the proceedings. See Potomac Passengers Ass'n v. Chesapeake & O. Ry., 520 F.2d 91, 171 U.S.App. D.C. 359 (D.C. Cir. 1975). Defendants argue that the Court lacks subject-matter jurisdiction over plaintiff's claims--against federal employees in their official capacities--because " [t]he doctrine of sovereign immunity insulates the United States from suit except on such exact terms as Congress authorizes." Nichols v. Agency for Int'l Dev., 18 F.Supp.2d 1, 3 (D.D.C. 1998) (citing Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967)). " Sovereign immunity is jurisdictional in nature." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Hence, whether the Court has subject-matter jurisdiction depends on the nature of plaintiff's claims.

1. Plaintiff has asserted tort claims and an employment discrimination claim

Because of the sparse nature of plaintiff's complaint and request for a TRO, it is difficult to discern the exact nature of the claims that she is asserting. But pro se complaints are to be " liberally construed." See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Construing her complaint and request for TRO broadly, plaintiff appears to assert tort claims and an employment discrimination claim. Compl. 1. In her complaint, plaintiff claims that the defendants, her first and second line supervisors at HUD, " verbally admonished [her] in front of other staff members [and] slandered [her] name," which she alleges constitutes a " Hostile/Bullying Work Environment." Id. She also alleges that " [e]veryday [she is] enduring verbal abuse," and that she is " scared that either supervisor will take the Hostile/Bullying Work Environment to the physical." Id. And on the civil cover sheet filed with her complaint, she indicated that the nature of the suit was " Harassment," located under " Personal Torts." These allegations fairly may be construed as claims for defamation and assault.

In her request for a TRO, she alleges that she has filed " 30 plus grievances to show that [her] two supervisors are at fault, as well as filed an EEO case, as well as a Workman's Comp case, [and] an OSHA case to protect [her] from bodily harm from both [of her] supervisors." Pl.'s Mot. for TRO (" TRO Mot." ) 1. And she alleges that she is " under Doctor's care for [her] anxiety/stress due to [her] hostile/bullying work environment." Id. On the civil cover sheet filed with her request for a TRO, she indicated that the nature of the suit was " Employment Discrimination." Title VII of the Civil Rights Act of 1964 may provide a remedy for harassment claims, including ...


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