United States District Court, District of Columbia
JOYCE M. CONYERS, Plaintiff,
JOEL WESTPHAL, Defendant.
CHRISTOPHER R. COOPER United States District Judge.
Westphal, Director of the Navy Archives, may here be grateful
for the Westfall Act. That is so because it affords
“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), and such is this suit. Joyce
Conyers, a Navy records manager, has sued Westphal for
common-law assault, based on incidents arising out of a
workplace dispute. The Attorney General, through delegated
authority, has certified that those events occurred within
the scope of Westphal's employment. Because the Court
agrees with that determination, the action is exclusively
cognizable as one against the United States under the Federal
Tort Claims Act. But for the reasons detailed below, that
means this Court is without jurisdiction to hear the case.
and Conyers both work at the Navy Yard in Washington, D.C.
Am. Compl. ¶ 3. Conyers alleges that, in June 2016,
Westphal sent her a “threatening” email, which
read as follows: “You broke the chain [of command] when
you gave a direction to a member of [my] staff. Please cease
and desist and use the chain.” Id. ¶ 7.
Conyers “felt threatened, ” and responded:
“Please do not email again[.] [T]his is threatening and
unprofessional. You may email my supervisor. Your emails are
derogatory and commanding.” Id. ¶ 8.
After the email exchange, Westphal allegedly walked to
Conyers' office and stopped in the doorway. Id.
¶¶ 9- 10. He was “extremely angry and
agitated, ” spoke to her “in a threatening and
menacing manner, ” and “pointed his finger at
[Conyers] [warning her] that she better not communicate again
with his employees and that he was going to file a
complaint.” Id. ¶¶ 10-11, 13.
Conyers-“fear[ing] for her safety”-then
“asked [Westphal] to leave her office, ” and he
did. Id. ¶¶ 14-16. Later, when Conyers was
speaking to a front-desk security officer about the incident,
a still-angry Westphal allegedly “came bursting
through” a set of double doors, “charging towards
[Conyers]”; but then he “proceeded to exit and
went outside” the building. Id. ¶¶
18-20. The whole incident allegedly had significant physical
repercussions for Conyers: She claims to have developed high
blood pressure, dizziness, and a migraine, and that her body
started to shake. Id. ¶¶ 25, 28. After a
police officer took her to a police station to provide a
statement, Conyers was transported by ambulance to a local
hospital due to her high blood pressure. Id.
¶¶ 26-29. The next day, her primary care doctor
allegedly “instructed [Conyers] to be on bedrest for
eight . . . days.” Id. ¶ 31. Conyers
returned to work roughly three weeks later, but remained
fearful of Westphal. Id. ¶¶ 32-34.
next month, in July 2016, Conyers filed a complaint in D.C.
Superior Court based on the above allegations, naming
Westphal as the sole defendant, in his individual capacity.
As amended, the complaint alleges a single count of assault.
See Am. Compl. ¶¶ 35-40. In October 2016,
Westphal filed a Notice of Removal in this Court, attaching a
Certification signed by the Chief of the Civil Division of
the U.S. Attorney's Office for the District of Columbia,
pursuant to authority delegated by the Attorney General.
See 28 C.F.R. § 15.4. The Certification stated
that “Defendant Joel Westphal was an employee of the
U.S. Department of the Navy and was acting within the scope
of his [f]ederal employment at the time of the incidents out
of which the claims alleged [in the instant complaint]
therein arose.” Notice of Removal, Attach. 2. Under the
Federal Employees Liability Reform and Tort Compensation Act
of 1988-commonly referred to as the Westfall Act-such
certification is “conclusive for purposes of removal,
” in that “once certification and removal are
effected, exclusive competence to adjudicate the case resides
in the federal court, and that court may not remand the suit
to the state court.” Osborn, 549 U.S. at
Moreover, so long as the district court agrees with the
certification's scope-of-employment determination,
“the United States is substituted as defendant in place
of the employee, ” and “[t]he litigation is
thereafter governed by” the Federal Tort Claims Act
(“FTCA”), 60 Stat. 842. Osborn, 549 U.S.
removed the case to this Court, Westphal now seeks to dismiss
it, for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1). He argues that, in light of
the Attorney General's certification, the suit is
cognizable only as one against the United States under the
FTCA. Accordingly, he contends that this Court is without
subject matter jurisdiction, because (1) Conyers has failed
to exhaust her administrative remedies by filing a damages
claim with the appropriate agency (here, the Department of
the Navy), as required by the FTCA, see 28 U.S.C.
§ 2675(a); and (2) Conyers' assault claim, as an
intentional tort, is not covered by the FTCA's waiver of
sovereign immunity, see 28 U.S.C. § 2680(h).
Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s
MSJ”) 5-11. Conyers does not directly contest these
arguments, and therefore has effectively conceded them.
See Buggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C.
2003) (arguments not addressed in an opposition may be
treated as conceded) (citing FDIC v. Bender, 127
F.3d 58, 67-68 (D.C. Cir. 1997)). However, she strikes at a
root premise underlying them all: Namely, she insists that
Westphal's alleged actions were beyond the scope of his
employment. See Pl.'s Mem. Opp'n Def.'s
Mot. Dismiss & Mem. Supp. Mot. Remand (“Pl.'s
Opp'n”) 9-13. If that were so, the FTCA would not
apply, and none of Westphal's jurisdictional arguments
though, the Court agrees with the government's
determination that Westphal's alleged conduct fell within
the scope of his employment. It follows that the Court is
without subject matter jurisdiction over Conyers' claim.
federal courts are of limited jurisdiction, with “only
that power authorized by Constitution and statute, ”
Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994)), they have “an affirmative
obligation” to ascertain the existence of subject
matter jurisdiction, James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996).
“[W]hen a federal court concludes that it lacks
subject-matter jurisdiction, the court must dismiss the
[case] in its entirety.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006).
as here, the defendant does not challenge the facts alleged
in the complaint in moving to dismiss for lack of
jurisdiction, the court accepts the truth of those factual
allegations and draws all inferences in favor of the
plaintiff. Am. Nat. Ins. Co. v. FDIC, 642 F.3d 1137,
1139 (D.C. Cir. 2011); see also Erby v. United
States, 424 F.Supp.2d 180, 182 (D.D.C. 2006) (“If
a defendant mounts a ‘facial' [as opposed to a
factual] challenge [to jurisdiction, ] the court must accept
as true the allegations in the complaint and consider the
factual allegations of the complaint in the light most
favorable to the non-moving party.”). However,
“those inferences [which] are unsupported by facts
alleged in the complaint or amount merely to legal
conclusions” should not be assumed as true.
Merkulov v. United States Park Police, 75 F.Supp.3d
126, 128 (D.D.C. 2014) (citing Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002)).
Attorney General's certification is “the first, but
not the final word” on whether Westphal's actions,
as alleged in Conyers' complaint, were within the scope
of his employment. Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 432 (1995). “A plaintiff may request
judicial review of the Attorney General's
scope-of-employment determination, ” Osborn,
549 U.S. at 246, and Conyers has done so here. However,
“[t]he Attorney General's certification that the
defendant was . . . acting [within the scope of employment]
is prima facie evidence of that fact, ”
Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir.
2013), carrying a “rebuttable presumption that the
employee has absolute immunity from the lawsuit, ”
Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008).
of employment questions are governed by the law of the place
where the employment relationship exists.” Majano
v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006).
Here, that place is the District of Columbia, so D.C. law
governs. Id.; see also Haddon v. United
States, 68 F.3d 1420, 1423 (D.C. Cir. 1995);
Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C. Cir.
1994). Under D.C. law, the “[c]onduct of a servant is
within the scope of employment if, but only if: (a) it is of
the kind he is employed to perform; (b) it occurs
substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve
the master; and (d) if force is intentionally used by the
servant against another, the use of force is not unexpectable
by the master.” Schecter v. Merchants Home
Delivery, Inc., 892 A.2d 415, 427 (D.C. 2006) (quoting
Restatement (Second) of Agency § 228 (1958)).
four of these conditions are satisfied here. First,
Westphal's conduct, which was aimed at enforcing his view
of a proper chain of command, is “of the kind he is
employed to perform” as the Director of the
Navy Archives. Schecter, 892 A.2d at 427. Indeed,
the sole communications alleged in the complaint
between Westphal and Conyers were work-related: Westphal sent
an email to Conyers telling her that she had inappropriately
given a direction to a member of his staff, and then he
followed up in person by telling her that “she better
not communicate again with his employees and that he was
going to file a complaint.” Am. Compl. ¶¶ 7,
13. Even if Westphal was angry-or “menacing, ”
“agitated, ” or “gritting . . . his
teeth”- while taking these actions, id.
¶¶ 10-11, 13, and even if Conyers felt threatened
by them, see Id. ¶¶ 8, 14, the actions
themselves were still typical of work a senior-level manager
might be expected to perform. Second, Westphal's alleged
conduct “occur[ed] substantially within . . .
authorized time and space limits.” Schecter,
892 A.2d at 427. When Westphal allegedly sent an email, came
to Conyers' office, and passed by her at the security
desk, he did so at the workplace and during the workday.
Third, it is clear that Westphal's conduct was
“actuated, at least in part, by a purpose to serve [his
agency employer].” Schecter, 892 A.2d at 427.
As explained above, his conduct was allegedly motivated, at
least partially, by a desire to enforce a departmental chain
of command. Finally, Conyers does not allege that Westphal
used force against her. In fact, she ...