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Steele v. Meyer

United States District Court, District Circuit

August 29, 2013

BRETT STEELE, Plaintiff,
HERMAN MEYER, et al., Defendants.


BERYL A. HOWELL, District Judge.

This common law tort action stems from an alleged altercation between the plaintiff, Brett Steele, and the defendants, Herman Meyer ("Meyer") and Craig Deare ("Deare"), all of whom were, at the time of the alleged altercation on August 2, 2011, employed by the National Defense University's College of International Security Affairs ("CISA"). The case was removed to this Court by the defendants, pursuant to 28 U.S.C. §§ 1442(a)(1), 1446 (2006) and the Federal Employees Liability Reform and Tort Compensation Act of 1988, also known as the Westfall Act, 28 U.S.C. § 2679(d)(2) (2006). Pending before the Court are the plaintiff's Motion to Remand due to the alleged invalidity of the Westfall Act certification and the defendants' Motion to Dismiss, under Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. For the reasons explained below, the plaintiff's Motion to Remand is DENIED and the defendants' Motion to Dismiss for lack of subject matter jurisdiction is GRANTED.


A. Factual History

The plaintiff began work as an associate professor at CISA in August of 2010. Compl. ¶ 8, ECF No. 4-1. Over the following year, the plaintiff was told to modify his teaching style at least twice in response to requests from his superiors. Id. ¶¶ 10-11, 18. The plaintiff alleges that during one meeting to address his teaching style and course content, he was verbally berated by CISA's Chancellor, Colonel Michael Bell ("Bell" or "the Chancellor"). Id. ¶ 17.

On August 2, 2011, the plaintiff was summoned to the Chancellor's office for a meeting at 11:00 a.m. Id. ¶ 21. Although the plaintiff denies that he was told the purpose of the meeting, id., he had several months previously been advised by a superior that "he would be terminated, " Id. ¶ 20. Present at that meeting were the Chancellor and both defendant Meyer, who served as CSI's Dean of Students, and defendant Deare, who served as CSI's Acting Academic Dean. Id. ¶¶ 2, 3, 25; Herman Meyer Aff. ("Meyer Aff.") ¶ 3, ECF No. 8-2; Craig Deare Aff. ("Deare Aff.") ¶ 3, ECF No. 8-3. The duties of both defendants include assisting the Chancellor with personnel matters. Meyer Aff. ¶ 3; Deare Aff. ¶ 3.The meeting's purpose was, in fact, to notify the plaintiff about his immediate placement on administrative leave prior to his termination. Meyer Aff. ¶ 3; Deare Aff. ¶ 3.

Due to previous "difficulties" with the plaintiff's "interactions with faculty and students, " arrangements were made before the meeting for personnel from security and the Military Police "to be standing by for assistance if needed." Meyer Aff. ¶ 5; Deare Aff. ¶ 3. The defendants describe the plaintiff as "nervous" "pensive" and "unpredictable" during the meeting. Meyer Aff. ¶ 5; Deare Aff. ¶ 4. The complaint and the defendants' declarations differ markedly in their recounting of what happened at the meeting.

The plaintiff alleges that soon after the meeting started, the Chancellor began berating him, prompting the plaintiff to stand up and "calmly... proceed to walk toward the closed [office] door" to leave. Compl. ¶ 24. The plaintiff alleges that upon reaching the door, the defendants grabbed him by the arms and shoulders and told him he "was not going anywhere." Compl. ¶ 25. The plaintiff was nevertheless "eventually able to break free from their grasp, " but when he "opened the door, he was met with a group of security officials and Military Police officers, " who escorted him to his office to collect his belongings and then off the premises. Compl. ¶¶ 28-30.

By contrast to the plaintiff's recounting, the defendants state that soon after the Chancellor began advising the plaintiff about the terms of his placement on administrative leave, the plaintiff "lunged at" the Chancellor across a table then rushed toward the door where defendant Meyer was standing and "grabbed" defendant Meyer's hands. Meyer Aff. ¶¶ 7-8. Defendant Deare was not in the room at that time, having stepped out to check on the location of security personnel. Meyer Aff. ¶¶ 8-9; Deare Aff. ¶ 4. When the plaintiff "pushed his way through the door, " he was able to see the Military Police and "immediately became more subdued and cooperative." Meyer Aff. ¶ 10; Deare Aff. ¶ 8. The plaintiff was then escorted by the Military Police and defendant Deare to his office where the plaintiff spent approximately one hour packing and moving into the hallway approximately 27 boxes of his personal belongings before being escorted out of the school building. Meyer Aff. ¶¶ 10-12; Deare Aff. ¶¶ 8-12; see also Compl, ¶ 30 ("Dr. Steel removed his belongings from his office"). The personal belongings were subsequently delivered to the plaintiff's home. Deare Aff. ¶ 11.

The plaintiff alleges that "[s]oon after the August 2011 incident, Dr. Steele began to feel pain in his right shoulder. Dr. Steele was later diagnosed with a torn rotator cuff." Compl. ¶ 33.

B. Procedural History

The plaintiff filed the instant action in the Superior Court of the District of Columbia, asserting four claims for damages based on false imprisonment, assault and battery, negligent infliction of emotional distress, and intentional infliction of emotional distress. See Not. of Removal Ex. A at 1, ECF No. 1-1. Pursuant to the Westfall Act, the defendants timely removed the action to this Court. See Not. of Removal at 2, ECF No 1. A certification that defendants Meyer and Deare "were employees of the Government and were acting within the scope of their employment at the [CISA] at the time of the allegations stated in the complaint" accompanied the Notice of Removal.[1] Not. of Removal Ex. B, ECF No. 1-2.

Pending before the Court is the plaintiff's Motion to Remand to the Superior Court on the ground that the defendants "were acting as private individuals" and not within the scope of their employment as federal employees at the time of the alleged altercation, thus rendering the Westfall Act certification in this case "insufficient" and "invalid." Pl.'s Mem. in Supp. Mot. to Remand, ECF No. 5 at 6; Pl.'s Reply in Supp. of Pl.'s Mot. to Remand ("Pl.'s Remand Reply"), ECF No. 10, at 1. The defendants oppose any remand and have moved to dismiss the plaintiff's claims, pursuant to Federal Rule of Civil Procedure 12(b)(1), since upon substitution of the United States as the defendant in this action, the Court's subject matter jurisdiction is limited by the Federal Tort Claims Act ("FTCA"), under which the plaintiff's claims are not cognizable. See Def.'s Mem. Opp. Pl.'s Mot. to Remand & Supp. of Def.'s Mot. Dismiss ("Def.'s Mot. Dismiss") at 2, ECF No. 8-1.


A. Westfall Act Review

The Supreme Court has succinctly summarized the operation of the Westfall Act, 28 U.S.C. § 2679(b)(1), which "accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 229 (2007). This law "was explicitly designed to nullify the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988), " which held that federal employees were immune to suits for damages under state tort law "only if the employees' conduct in question was within the scope of employment and discretionary in nature." Kimbro v. Velten, 30 F.3d 1501, 1504 (D.C. Cir. 1994). The Westfall Act "return[ed] government employees to their status ...

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