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Allen v. Brown

United States District Court, District of Columbia

August 1, 2018

ROBERT E. ALLEN, et al., Plaintiffs,
v.
JERRY BROWN, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN S. HUVELLE UNITED STATES DISTRICT JUDGE

         Plaintiffs, twenty-three federal police officers stationed at the Veterans Affairs (“VA”) Medical Center in Washington, D.C., bring this action against the Chief of Police at the VA Medical Center, Jerry Brown; the VA Medical Center Director, Brian Hawkins; and the Secretary of United States Department of Veterans Affairs. They allege that defendants secretly installed audio and video recording devices at several non-public locations within the VA Medical Center, in violation of federal and state wiretapping statutes, state civil conspiracy law, and the Fourth Amendment. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. For the reasons stated herein, defendants' motion will be denied as to the federal wiretapping claim and the Fourth Amendment claim (Counts 1 and 4) but granted as to the state law claims (Counts 2 and 3).

         BACKGROUND

         I. FACTUAL BACKGROUND

         Unless otherwise noted, the facts set forth herein are taken from the allegations of the amended complaint or undisputed evidence in the record.[1]

         A. Facts Alleged in the Amended Complaint[2]

         Plaintiffs are police officers employed by the United States Department of Veterans Affairs and stationed at the VA Medical Center, under the command of Chief of Police Jerry Brown. (Am. Compl. ¶¶ 1-24, ECF No. 5.) In October 2013, Chief Brown allegedly “conspired” with the Medical Director, Brian Hawkins, to install hidden cameras, with both audio and video recording capability, in at least three non-public locations within the VA Medical Center - the Police Control Room, the Police Report Writing Room, and the Watch Commander's Office. (Id. ¶¶ 30, 52.) Before arranging for the installation of these devices, Chief Brown did not obtain a warrant or comply with the applicable rules in the VA Handbook.[3] (See Id. ¶¶ 46-49, 74.) He did, however, send a memorandum, dated October 23, 2013, to Director Hawkins, requesting permission “to install two covert video surveillance devices” - one in the Police Control Room and the other in the Police Report Writing Room. (See Defs.' Ex. A (copy of 10/23/2013 memorandum); see also Am. Compl. ¶ 53.) According to this memorandum, the devices were to be used for a period of 90 days to investigate “suspicious activity” between the evening dispatcher and other police officers. (See Defs.' Ex. A.) Director Hawkins approved Chief Brown's request, and cameras were subsequently installed in these two locations. (See Defs.' Exs. A, J (Decl. of Chief Brown) (“Brown Decl.”); see also Am. Compl. ¶¶ 36, 39, 53.) There is no mention of the Watch Commander's Office in this memorandum, and defendants deny that a camera was ever installed in that location. (See Brown Decl. ¶¶ 3-4.)

         The Police Control Room is a room where every VA police officer spends time throughout the day. (Am. Compl. ¶ 33.) Other individuals, including cleaning staff, other staff members, various contractors, and patients of the medical facility, also have access to this room. (Id. ¶ 34.) The Report Writing Room is used by police officers daily for a variety of purposes, including the writing of reports and as an alternative break room. (Id. ¶ 40.) The Watch Commander's Office is “used, in part, as a changing room for both male and female officers.” (Id. ¶ 43.) In each of these rooms, individuals could stop talking when other individuals entered the room or doors could be closed to prevent individuals from outside the room from overhearing conversations. (Id. ¶ 54.)

         VA police officers first learned of the possible existence of hidden cameras on January 19, 2014, when Officer Gentry, a plaintiff, “informed various officers that [Chief] Brown might have secret cameras installed and may be monitoring their activities.” (Id. ¶ 35.) A few days later, on January 24, 2014, several officers discovered the camera in the Police Control Room. (Id. ¶ 36.) The camera was “covertly mounted on a support bracket for the CCTV monitors with a microphone hidden behind the monitors.” (Id.) “While the camera and microphone had indicator lights, those lights were covered with black electric tape.” (Id.) Upon discovery, one officer “covered the microphone portion of the camera, ” while the officers who were present “discussed what to do about the camera and microphone.” (Id.) As soon as the microphone was covered, Chief Brown appeared in the Police Control Room, “demanding to know what the officers were doing in the room and ordered all attending officers to draft statements regarding what was happening in the control room.” (Id. ¶¶ 37-38.) In March 2014, a hidden camera with a microphone unit was discovered in the Police Report Writing Room.[4] (See Id. ¶ 39.) In January 2015, officers found a hidden camera with a microphone unit in the Watch Commander's Office (Room 1E229B). (Id. ¶ 42.)

         During April 2014, in response to complaints, the VA Medical Center Administrative Investigation Board conducted an investigation into an allegedly hostile work environment fostered by Chief Brown. (See Defs.' Ex. F, at 1, 8 (transcript of 4/23/2014 interview under oath of Chief Brown) (“Brown Tr.”).) Chief Brown and Director Hawkins were both interviewed as part of this investigation. (See Defs.' Ex. F; Defs.' Ex. G (transcript of 4/22/2014 interview under oath of Director Hawkins) (“Hawkins' Tr.”).) One aspect of this investigation concerned the hidden cameras that had been discovered in the Police Report Writing Room and the Police Control Room. (See Brown Tr. at 11-13, 23-26.) During his interview, Chief Brown testified that he had sought permission from Director Hawkins to install these cameras “as part of a criminal investigation, suspicion of criminal activity, not for monitoring the performance of the work of the employee.” (Brown Tr. at 12.) He further testified that he had never requested that the audio recording capabilities of the hidden devices be activated, and that the company who installed the equipment told him that they were not. (Id. at 23-24.) Director Hawkins testified during his interview that he had authorized the video surveillance requested by Chief Brown due to Chief Brown's concerns about potential criminal activity and workplace misconduct. (Hawkins Tr. at 6.) He further testified that he did not authorize any audio. (See Id. at 14.) The Board also interviewed Mark Bradford, an employee of the company that installed the surveillance equipment. (See Defs.' Ex. K (transcript of 4/22/2014 interview under oath of Mark Bradford) (“Bradford Tr.”).) He testified that the audio capabilities of the devices his company installed were not activated. (See Id. at 8.)[5] Based on the above-described testimony, along with the October 2013 memorandum, and Chief Brown's declaration filed in this case, defendants deny that the audio capabilities of the cameras in the Police Control Room and the Police Report Writing Room were activated or that any audio recordings were ever made. (See Defs.' Facts ¶¶ 8, 11; Brown Decl. ¶¶ 3-4, 10.)

         On November 4, 2014, the Veterans Health Administration (VHA) issued Directive 1078, entitled “Privacy of Persons Regarding Photographs, Digital Images, and Video or Audio Recordings.” (See Pls.' Ex. 11.) The stated purpose of the directive was to “establish[] VHA policy defining the parameters under which members of the VHA workforce may produce and use photographs, digital images, and video or audio recordings of all persons.” (Id. at 1.) The Directive provides that:

If the use of equipment to covertly produce photographs, digital images, or video or audio recordings is to investigate suspected cases of VHA workforce misconduct, the VA medical facility Director, the Regional Counsel, and the chief human resources officer of the facility all must approve this use before the equipment may be used.

(Id. at A-2.)

         On March 2, 2015, video footage from the camera in the Police Report Writing Room was used by Chief Brown to request disciplinary action against two of the plaintiffs, Officers Kevin Price and Anthony Green, for sleeping on duty and lack of candor in pretending to have been on patrol while actually sleeping. (See Defs.' Ex. B.[6])

         The cameras in these three locations were used to “ma[k]e audio and video recordings of all personnel who utilized these rooms, ” which “were delivered on a real-time basis to [Chief] Brown's office.” (Am. Compl. ¶¶ 45, 56.) Plaintiffs believe that “these cameras remain[ed] in use as of the filing of this action.” (Id. ¶ 44.) They also “suspect the existence of other audio and video recording devices.” (Id. ¶ 57.) Defendants deny that the two cameras they admit to installing remained in use until this lawsuit was filed. They claim that the camera in the Police Control Room “was only operational until January 29, 2014, ” and that the camera in the Police Report Writing Room “was operational until March 23, 2014.” (See Brown Decl. ¶¶ 3-4, 10-13.)

         II. PROCEDURAL HISTORY

         A. 2015 Litigation

         In 2015, based on the events described above, 24 VA Medical Center police officers filed suit against Chief Brown, Director Hawkins, and the Secretary of the VA, claiming that the hidden audio and video recording devices in the VA Medical Center violated federal and state law. (See Compl., Allen v. Brown, No. 15-cv-0969 (D.D.C. June 22, 2015) (“2015 Litigation”).)[7]The complaint included five counts: Count I claimed that Chief Brown and Director Hawkins had violated the federal wiretapping statute, see 18 U.S.C. §§ 2510, et seq.; Count II claimed they had violated the D.C. wiretapping statute, see D.C. Code §§ 23-542; Count III claimed that their actions constituted an unlawful civil conspiracy under D.C. law; Count IV claimed that Chief Brown's actions constituted an unlawful search and seizure under the Fourth Amendment and that he was personally liable for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); and Court V claimed that the Secretary of the VA was liable for Chief Brown's actions under the Federal Tort Claims Act (“FTCA”). (Compl. ¶¶ 96-98, 2015 Litigation.)

         Defendants moved to dismiss or, in the alternative, for summary judgment. The Court denied the motion except as to Count V, the FTCA claim against the Secretary of the VA, which it dismissed on the ground that the only proper defendant for an FTCA claim is the United States, and plaintiffs had not sought to substitute the United States as the defendant for that count. See Allen v. Brown, 185 F.Supp.3d 1 (D.D.C. 2016).[8]

         After ruling on defendants' motion, the Court held an initial scheduling conference and entered a scheduling order, which provided that discovery was to be completed by February 1, 2017. (See Scheduling Order, 2015 Litigation, ECF No. 36.) However, on August 1, 2016, plaintiffs' attorneys filed a motion to withdraw as counsel. (See Mot. to Withdraw, 2015 Litigation, ECF No. 38.) The motion informed the Court that on June 27, 2016, they had sent a letter, along with their motion to withdraw, to each plaintiff advising that they intended to withdraw and that plaintiffs could either have new counsel enter an appearance or notify the Clerk if they intended to proceed without counsel. (Id.)

         The Court set a hearing on the motion to withdraw for September 8, 2016. (See Order, 2015 Litigation, ECF No. 39.) In its Order, the Court directed counsel to ensure that each plaintiff received notice of the hearing and was advised either to appear in person or retain new counsel to appear on his/her behalf. (Id.) The Court also ordered the Clerk of Court to mail copies of the Order to each plaintiff. (Id.)

         No plaintiff took action prior to the hearing or appeared at the hearing; nor did any new counsel appear. At the hearing, after a discussion with plaintiffs' counsel, the Court determined that it would grant the motion to withdraw. (See Tr. of 9/8/2016 Mot. Hrg., 2015 Litigation (“9/8/16 Tr.”) (COURT: “I'm going to grant the motion to withdraw as counsel. I understand why. I don't think I can keep him in a case when he wants to - the way I view it is you want to dismiss the case and your clients won't agree.” COUNSEL FOR PLAINTIFFS: “That is fair, Your Honor.”).)

         In light of plaintiffs' failure to appear or retain new counsel, defendants orally moved the Court to dismiss the case for lack of prosecution. (See Id. (COUNSEL FOR DEFENDANTS: “[G]iven [plaintiffs' failure to provide initial disclosures] and given the lack of interest in coming to the status hearing today[, ] we[] would ask for the record that the matter be dismissed for lack of prosecution.”)) The Court decided to defer ruling on defendants' motion until after it had issued an order to show cause, giving plaintiffs one final chance to either retain new counsel or decide to proceed pro se. (Id.) If plaintiffs failed to respond to the order to show cause, the Court indicated that it would dismiss for failure to prosecute. (Id. (“I will set a date certain for dismissal.”).) The Court noted, and defendants' counsel verbally acknowledged that it understood, that such a dismissal would be without prejudice. (Id. (COURT: “If it is dismissed for lack of prosecution, it is without prejudice, I think.” COUNSEL: “Understood, Your Honor.”).)

         The Court's order to show cause, issued that same day, gave plaintiffs until September 23, 2016, to show cause why the matter should not be dismissed for failure to prosecute. (See Order, 2015 Litigation, ECF No. 41.) The Clerk of Court mailed a copy of the order to each plaintiff. (Id.) On September 27, 2016, having received no response from any plaintiff, the Court dismissed all remaining claims in the 2015 Litigation for failure to prosecute, but its Order failed to indicate that the dismissal was without prejudice. (See Order, 2015 Litigation (Sept. 17, 2016), ECF No. 42.)

         B. Current Litigation

         On September 22, 2017, almost two years after the Court dismissed the 2015 Litigation, the current case was filed by different counsel. Of the 23 plaintiffs, 21 had been plaintiffs in the 2015 Litigation. The complaint again named Chief Brown, Director Hawkins, and the Secretary of the VA as defendants, and it included counts that mirrored Counts I-IV from the 2015 Litigation. Specifically, Count 1 claims that Chief Brown and Director Hawkins violated the federal wiretapping statute, see 18 U.S.C. §§ 2510, et seq.; Count 2 claims that they violated the District of Columbia wiretapping statute, D.C. Code §§ 23-542; Count 3 claims that they engaged in an unlawful civil conspiracy under District of Columbia law to violate federal and state wiretapping statutes; and Count 4 claims that Chief Brown's actions constituted an unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution, for which he is personally liable under Bivens. (See Am. Compl. ¶¶ 59-78.) It did not include a count mirroring Count V, the FTCA claim against the Secretary, which the Court had dismissed for failure to name the proper defendant.

         On January 17, 2018, defendants filed a motion to dismiss or, in the alternative, for summary judgment. (See Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J., Jan 17, 2018, ECF No. 11 (“Defs.' Mot.”).) Attached to their motion was a certification by the United States, pursuant to 28 U.S.C. § 2679(d), that “Jerry Brown and Brian Hawkins were acting within the scope of their employment as employees of the United States at the time of the alleged incidents.” (Westfall Certification, ECF No. 10-12.) This certification presumptively substitutes the United States as the sole defendant for the state law tort claims, Counts 2 and 3, and converts those claims into claims under the Federal Tort Claims Act (“FTCA”). (Defs.' Mot. at 1 n.1; Defs.' Mem. in Support of Defs.' Mot. at 2 (“Defs.' Mem.”) (“The United States has been substituted for the sole defendant in Counts 2 and 3 by virtue of the accompanying Certification under 28 U.S.C. § 2679(d).”).) Plaintiffs filed an opposition to defendants' motion, including a challenge to the Westfall Certification and a Rule 56(d) Declaration, on February 28, 2018 (see Pls.' Opp'n, ECF No. 15), and defendants filed a reply on March 27, 2018 (see Defs.' Reply, ECF No. 16).

         ANALYSIS

         Defendants' motion to dismiss or, in the alternative, for summary judgment argues (1) that the state law claims (Counts 2 and 3) should be dismissed for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), due to plaintiffs' failure to exhaust administrative remedies as required by the FTCA; (2) that all of the claims should be dismissed for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), either because the claims are barred by the doctrine of res judicata, the FTCA's judgment bar, see 28 U.S.C. 2676, or the applicable statute of limitations; and (3) for any claims that are not dismissed, defendants are entitled to summary judgment, see Fed. R. Civ. P. 56. It also points out, and plaintiffs do not disagree, that no claim is brought against the Secretary of the VA, so he should be dismissed as a defendant.

         I. LEGAL STANDARDS

         A. Subject Matter Jurisdiction (Rule 12(b)(1))

         Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim for relief when the complaint “lack[s] . . . subject-matter jurisdiction.” The plaintiff “bears the burden of demonstrating that the Court has subject matter jurisdiction.” See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). A court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         B. Failure to State a Claim (Rule 12(b)(6))

         Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief when the complaint “fail[s] to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The facts alleged must “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The court must ‘accept all the well-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in the plaintiffs favor.'” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (quoting Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)); Bowman v. Iddon, 848 F.3d 1034, 1039 (D.C. Cir. 2017). “‘In determining whether a complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.'” Hurd, 864 F.3d at 678 (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)); see also Crawford v. Duke, 867 F.3d 103, 108 (D.C. Cir. 2017)

         C. Summary Judgment (Rule 56)

         Under Federal Rule of Civil Procedure 56, “a party may file a motion for summary judgment at any time until 30 days after the close of all discovery, ” “[u]n less a different time is set by local rule or the court orders otherwise.” Fed.R.Civ.P. 56(b). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that could change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate only when the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The moving party bears the responsibility of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this standard, the burden of proof shifts to the non-movant, who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. In determining whether there are genuine disputes as to material facts, courts must “view[] the evidence in the light most favorable to the non-movant and draw[] all reasonable inferences accordingly.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). If, even then, “no reasonable jury could reach a verdict in her favor, ” summary judgment is properly granted. Id. At the summary judgment stage, a court is “‘not to make credibility determinations or weigh the evidence.'” DeJesus v. WP Co. LLC, 841 F.3d 527, 531 (D.C. Cir. 2016) (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)); see also Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge's function is not [] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”).

         “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). To prevail on a Rule 56(d) request, the “movant must submit an affidavit which states with sufficient particularity why additional discovery is necessary.” Convertino v. U.S. Dep 't of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (internal quotation marks omitted). The affidavit must satisfy three criteria: “(1) ‘[I]t must outline the particular facts [the non-movant] intends to discover and describe why those facts are necessary to the litigation'; (2) ‘it must explain why [the non-movant] could not produce the facts in opposition to the motion for summary judgment'; and (3) ‘it must show the information is in fact discoverable.” United States ex rel. Folliard v. Gov't Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (quoting Convertino, 684 F.3d at 99-100) (other internal quotation marks and citations omitted); see also Smith v. United States, 843 F.3d 509, 513 (D.C. Cir. 2016) (“Rule 56(d) affiant must, among other things, ‘outline the particular facts he intends to discover and describe why those facts are necessary to the litigation,' and he must explain why he cannot provide evidence to counter his opponent's summary judgment motion.” (quoting Convertino, 684 F.3d at 99-100)).

         II. SUBJECT MATTER JURISDICTION (COUNTS 2 & 3)

         Defendants argue that Counts 2 and 3 should be dismissed for lack of subject matter jurisdiction because (1) the claims “fall under the FTCA” now that the United States has been substituted as the sole defendant; and (2) “those claims have not been timely exhausted through the requisite administrative remedies under the FTCA, ” see 28 U.S.C. § 2675(a). (Defs.' Mem. at 8.) Plaintiffs first contest the Westfall Certifications, arguing that scope of employment disputes are for a jury to decide or, at least, should not be resolved before discovery. In the alternative, plaintiffs argue that even if Counts 2 and 3 are converted to FTCA claims against the United States, they have either satisfied the statutory exhaustion requirement or they are entitled to discovery to determine whether they have met the requirement.[9]

         A. Westfall Certifications/Scope of Employment

         “The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity” from liability for “injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission . . . while acting within the scope of his office or employment.” Osborn v. Haley, 549 U.S. 225, 229 (2007); 28 U.S.C. § 2679(b)(1).[10] Thus, under the Westfall Act, “when a federal employee is named in a tort suit, the Attorney General or his designee may 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.'” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009) (quoting 28 U.S.C. § 2679(d)(1)).[11] Generally, “[u]pon the Attorney General's certification, the federal employee is dismissed from the case and the United States is substituted as the defendant in place of the employee, ” and “[t]hereafter, the suit is governed by the Federal Tort Claims Act (“FTCA”).” Id; see 28 U.S.C. § 2679(d)(4).[12]

         However, “[a] plaintiff may contest the Attorney General's scope-of-employment certification before a district court.” Wuterich, 562 F.3d at 381; see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995) (“[T]he Attorney General's certification that a federal employee was acting within the scope of his employment . . . does not conclusively establish as correct the substitution of the United States as defendant in place of the employee.”). “Once a plaintiff advances this argument, the certification ‘constitute[s] prima facie evidence that the employee was acting within the scope of his employment.'” Wuterich, 562 F.3d at 381 (quoting Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006)); see also Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013) (same). “To rebut the certification and obtain discovery, a plaintiff must ‘alleg[e] sufficient facts that, taken as true, would establish that the defendant[‘s] actions exceeded the scope of [his] employment.'” Wuterich, 562 F.3d at 381 (quoting Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003)); see also Stokes, 327 F.3d at 1215 (plaintiffs “burden [i]s to raise a material dispute”). If the complaint itself does not include the necessary allegations, courts may look to see whether plaintiffs have satisfied their burden by including such allegations in their response to the motion to dismiss. See, e.g., Jackson v. United States, 857 F.Supp.2d 158, 160 (D.D.C. 2012) (considering “plaintiffs complaint and the additional facts included in her response to the motion to dismiss”). “‘Not every complaint will warrant further inquiry into the scope-of-employment issue.'” Wuterich, 562 F.3d at 381 (quoting Stokes, 327 F.3d at 1216). “Consequently, where a plaintiff fails to allege sufficient facts to rebut the certification, the United States must be substituted as the defendant because the federal employee is absolutely immune from suit.” Id.

         Plaintiffs contest the Westfall Certification and seek discovery on the scope of employment issue, but they have failed to allege sufficient facts to meet their burden. Their burden is not onerous, but they have failed to allege facts that, if true, would establish that Chief Brown and Director Hawkins were not acting within the scope of their employment.[13]

         “In determining whether an employee acted within the scope of his employment, [courts] consider the substantive law of the jurisdiction where the employment relationship exists-here, the law of the District of Columbia.” Jacobs, 724 F.3d at 221; see also Majano v. United States,469 F.3d 138, 141 (D.C. Cir. 2006) (same). “As its framework for determining whether an employee acted within the scope of employment, the Court of Appeals for the District of Columbia looks to the Restatement (Second) of Agency.” Majano, 469 F.3d at 141 (internal quotations omitted). “Under the Restatement, an employee's conduct falls within the scope of employment if: 1) it is of the kind of conduct he is employed to perform; 2) it occurs substantially within the authorized time and space limits; 3) it is actuated, at least in part, by a purpose to serve the master; and 4) if force is intentionally used by the servant against another, the use of force is not unexpected by the master.” Id. “Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Restatement (Second) of Agency § 228. “The test is ‘objective' and is ‘based on all the facts and circumstances.'” Jacobs, 724 F.3d at 221 (quoting Weinberg v. ...


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