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Harrison v. Federal Bureau of Prisons

United States District Court, District of Columbia

February 28, 2018

WILLIAM HENRY HARRISON, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Renewed Motion to Dismiss, Dkt. 14, and Plaintiff's Motion for Reconsideration, Dkt. 16, of the Court's March 31, 2017 Memorandum Opinion and Order, Dkt. 13. The facts of this case are set out in that prior opinion. For the reasons stated below, the Court will GRANT in part and DENY in part Plaintiff's Motion for Reconsideration, Dkt. 16, and will GRANT in part and DENY in part Defendants' Renewed Motion to Dismiss, Dkt. 14. The Court will further DENY Plaintiff's Motion for Summary Judgment, Dkt. 11.[1]

         ANALYSIS

         A. Defendants' Renewed Motion to Dismiss

         The Court previously dismissed all of Plaintiff William Henry Harrison's claims except for his common law libel claims against the individual defendants-all federal employees-in their individual capacities. Dkt. 13 at 2. Those claims survived because of the government's failure to file a certification prior to the Court's March 31, 2017 decision attesting that the employees were acting within the scope of their employment. Id. The Westfall Act “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) (citing 28 U.S.C. § 2679(b)(1)). Under the Act, the Attorney General (or his designee) is empowered “to certify that the employee ‘was acting within the scope of his office or employment at the time of the incident out of which the claim arose.'” Id. at 229-30 (quoting 28 U.S.C. § 2679(d)(1), (2)). “Upon the Attorney General's certification, the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee.” Id. at 230. At the time of the Court's prior opinion, the Attorney General had yet to file such a certification, and, accordingly, the Court denied the government's motion as to Harrison's common law tort claims against the individual defendants. Dkt. 13 at 16.

         On April 10, 2017, the Attorney General (through his designee) filed a Westfall certification attesting that the individual defendants were acting within the scope of their employment with respect to the allegedly tortious conduct. See Dkt. 14-1. A Westfall certification constitutes prima facie evidence that an individual defendant was acting within the scope of his or her government employment. Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013). After the Attorney General issues a Westfall certification, the burden shifts to the plaintiff “to raise a material dispute regarding the substance of [the certifying official's] determination by alleging facts that, if true, would establish that the defendants were acting outside the scope of their employment.” Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003); see also Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994). The pleading standards set out in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), guide the Court's review. See Jacobs, 724 F.3d at 221. Accordingly, to rebut a Westfall certification, Harrison must allege more than legal conclusions; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (quoting Iqbal, 556 U.S. at 678).

         The D.C. Circuit has offered two slightly different articulations of the choice of law inquiry for purposes of the Westfall Act. See Kelley v. FBI, 67 F.Supp.3d 240, 277 (D.D.C. 2014) (describing this discrepancy in the case law). Under one approach, the Court must apply the law “of the state in which the alleged tort occurred.” Wuterich v. Murtha, 562 F.3d 375, 383 (D.C. Cir. 2009); accord Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008). Under the other, the Court must apply the “law of the jurisdiction where the employment relationship exists.” Jacobs, 724 F.3d at 221; accord Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006). For present purposes, however, this nuance is of no consequence. As far as the Court can discern from the complaint and the existing record, the alleged torts occurred in Virginia, and the individual defendants are employed at a Bureau of Prisons (“BOP”) facility in Virginia. See Dkt. 1 at 3 (Compl. ¶ 1).

         The Virginia Supreme Court defines the boundaries of the scope of employment as follows:

Generally, an act is within the scope of the employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer's interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer's business . . . .

Gina Chin & Assocs., Inc. v. First Union Bank, 537 S.E.2d 573, 577 (Va. 2000) (emphasis omitted) (quoting Kensington Assocs. v. West, 362 S.E.2d 900, 901 (Va. 1987)). Virginia law does not “automatically” place an intentional tort, such as those alleged here, outside of the scope of employment. Blair v. Def. Servs., Inc., 386 F.3d 623, 627 (4th Cir. 2004). Rather, “[t]he test of liability is . . . whether that act was within the scope of the duties of employment and in the execution of the service for which he was engaged.” Comm. Bus. Sys., Inc. v. BellSouth Servs., Inc., 453 S.E.2d 261, 266 (Va. 1995) (quoting Tri-State Coach Corp. v. Walsh, 49 S.E.2d 363, 366 (Va. 1948)).

         Harrison's contention that the individual defendants acted outside the scope of their employment rests on their allegedly improper motives. Under Virginia law, motive is “not irrelevant to the issue [of] whether the act was within the scope of employment.” Gina Chin, 537 S.E.2d at 578 (emphasis added). But it “is not determinative;” instead, “the issue is ‘whether the service itself, in which the tortious act was done, was within the ordinary course of such business.” Id. (quoting Davis v. Merrill, 112 S.E. 628, 631 (Va. 1922)). Virginia courts-and other courts applying Virginia law on this point-moreover, have recognized an expansive range of behaviors that may fall within an employee's scope of employment, even in the face of allegedly malicious or otherwise improper motives. For example, a bank teller's participation in a scheme to cash forged checks, in which the teller “act[ed] out of self-interest” in a way that was “‘outrageous and violative of [the] employer's rules, '” was not, as a matter of law, outside of the scope of his employment because “in doing so he was performing a normal function of a bank teller in accepting checks for deposit.” Id. at 579 (quoting Comm. Bus. Sys., 453 S.E.2d at 266). Similarly, the operator of a railroad gate who became sufficiently “agitated when a motorist asked him to raise the gate” that he then “shot at the vehicle and killed one of the occupants” had not “as a matter of law . . . acted outside the scope of his employment” because the proper test was “‘whether the service itself, in which the tortious act was done, was within the ordinary course of [the employer's] business.'” Comm. Bus. Sys., 453 S.E.2d at 265 (quoting Davis, 112 S.E. at 631). In a case involving a Westfall certification, another court held that “a supervisor who, for simply personal reasons” including enmity for the employee, “wanted to get his subordinate fired and used improper means, perhaps even defamation, to reach that end” was clearly acting within the scope of his employment. Emami v. Bolden, 175 F.Supp.3d 616, 621 (E.D. Va. 2016). Not even limited jurisdictional discovery was necessary because the production of “negative, even deceptive” records and evaluations of the type the supervisor was hired to produce fell “squarely within that supervisor's scope of employment under Virginia law.” Id.

         Harrison's libel allegations concern BOP recordkeeping. Specifically, he alleges that the warden, associate warden, unit manager, and case manager who oversaw his incarceration “libelously” marked his file with “an unwarranted Public Safety Factor (PSF)” that prevented his transfer to a lower-security institution. Dkt. 1 at 4-9 (Compl. ¶¶ 9-31); see also Id. at 11 (Compl. ¶ 39) (“Defendants, and each of them, individually and collectively, have conspired to, and did, libel Harrison's good name and place him in danger while incarcerated due to the maintaining of the knowingly false label of a Sex Offender.”). Under the reasoning of the cases discussed above, the false designations that Harrison alleges the individual defendants made regarding his security status were “within the ordinary course of” the business of running a prison, Gina Chin, 537 S.E.2d at 578 (quoting Davis, 112 S.E. at 631), and the individual defendants were “performing [their] duties . . . in the execution of the services for which [they] w[ere] employed, ” id. (quoting Comm. Bus. Sys., 453 S.E.2d at 266). Even though Harrison has alleged that the individual defendants took actions contrary to BOP policy and acted with improper motives-including “falsely back-dating” his administrative requests, “violating the time constraints imposed upon them” by BOP regulations, and “conspiratorially orchestrat[ing] [an] intentional delay” of his administrative requests for reclassification and transfer, Dkt. 17 at 2-the Court's focus must remain on the character of the actions. And here, all of the allegations relate to the recordkeeping and prison administration tasks “for which [the individual defendants] w[ere] employed.” Gina Chin, 537 S.E.2d at 578 (quoting Comm. Bus. Sys., 453 S.E.2d at 266).

         The Court, accordingly, concurs with the conclusion made in the Westfall certification that those defendants sued in their individual capacities were acting within the scope of their employment at the time the allegedly tortious conduct occurred. See Jacobs, 724 F.3d at 223- 24. The Court will, accordingly, dismiss the libel claims made against the individual defendants and substitute the United States as a defendant. See Osborn, 549 U.S. at 229-30. The Court, in turn, must then dismiss those claims, because the federal government has not waived its sovereign immunity as to “tort claims ‘arising out of . . . libel [or] slander.'” Wuterich, 562 F.3d at 387 (quoting 28 U.S.C. § 2680(h)).

         B. Plaintiff's Motion for Reconsideration

         Also before the Court is Harrison's Motion for Reconsideration. Dkt. 16. Because that motion was filed within twenty-eight days of the Court's order dismissing most of Harrison's claims, it is governed by Federal Rule of Civil Procedure 59(e). See Emory v. Sec'y of Navy, 819 F.2d 291, 293 (D.C. Cir. 1987). A motion under Rule 59(e) “is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (internal quotation marks and citation omitted). Such motions “cannot be used to raise arguments which could, and should, have been made before the ...


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