United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
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.
Defendants' Renewed Motion to Dismiss
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.
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).
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).
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)).
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.
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).
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)).
Plaintiff's Motion for Reconsideration
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