1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELIZABETH AVILES-WYNKOOP, Plaintiff,

v. Civil Action No. 13-1240 (JDB) KEIA NEAL et al., Defendants.

MEMORANDUM OPINION Plaintiff, an employee at the Department of Housing and Urban Development (“HUD”), seeks a temporary restraining order (“TRO”) and a preliminary injunction against her supervisors at HUD. Originally, plaintiff filed a pro se compla int, a request for a tem porary restraining order, and a request for a preliminary injunction in D.C. Superior Court on August 6, 2013. The Chief of the Civil Division, Office of the United States Attorney for the District of Columbia, filed a Westfall certification under 28 U.S.C. § 2769(d), conclusively affirming that the defendants were employees of the government and were acti ng within the scope of their employment at the time of plaintiff’s allegations. As a result, defenda nts removed the case to this Court pursuant to 28 U.S.C. § 1442(a)(1) & 1446 and 28 U.S.C. § 2679( d)(2). Also as a result of the Westfall certification, and pursuant to 28 U.S.C. § 2679(d )(2), the United States of America will be substituted for defendants as th e defendant in this case. Defendants argue in their respons e to plaintiff’s request for a TRO that this Court lacks subject-matter jurisdiction over pl aintiff’s claims. Def.’s Opp’n 5- 13. Federal courts are courts of limited jurisdiction and it is presumed that “a cause lies outside th is limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors2 Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C . Cir. 2004) (noting that “[a]s a court of limited jurisdiction, we begin, and end, with an ex amination of our jurisdiction”). Accordingly, a federal court has a duty to notice a failure of s ubject-matter jurisdiction on its own motion at any time during the proceedings. See Potomac Passe ngers Ass’n v. Chesapeake & O. Ry., 520 F.2d 91 (D.C. Cir. 1975). Defendants argue that the Court lacks subject-matter jurisdiction over plaintiff’s claims—against federal employees in their official capacities —because “[t]he doctrine of sovereign immunity insulates the United Stat es from suit except on such exact terms as Congress authorizes.” Nichols v. Agency fo r Int’l Dev., 18 F. Supp. 2d 1, 3 (D.D.C. 1998) (citing Honda v. Clark, 386 U.S. 484, 501 (1967)). “Sovereign immunity is jurisdictional in nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Hence, whether the Court has subject-matter jurisdiction depends on the natu re of plaintiff’s claims. 1. Plaintiff has asserted tort claims and an employment di scrimination claim Because of the sparse nature of plaintiff’s co mplaint and request for a TRO, it is difficult to discern the exact nature of the claims that sh e is asserting. But pro se complaints are to be “liberally construed.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Construing her complaint and request for TRO broadly, plai ntiff appears to assert tort claims and an employment discrimination claim. Compl. 1. In her complaint, plaintiff claims that the defendants, her first and second line supervisors at HUD, “verbally adm onished [her] in front of other staff members [and] slandered [her] name,” which she al leges constitutes a “Hostile/Bullying Work Environment.” Id. She also alleges that “[e]veryda y [she is] enduring verbal abuse,” and that she is “scared that either supervisor will take the Hostile/Bullying Wo rk Environment to the physical.” Id. And on the civil cover sheet filed with her complaint, she indi cated that the nature3 of the suit was “Harassment,” lo cated under “Personal Torts.” Thes e allegations fairly may be construed as claims for defamation and assault. In her request for a TRO, she al leges that she has filed “30 pl us grievances to show that [her] two supervisors are at fault, as well as filed an EEO case, as we ll as a Workman’s Comp case, [and] an OSHA case to protect [her] from bodily harm from both [of her] supervisors.” Pl.’s Mot. for TRO (“TRO Mot.”) 1. And she allege s that she is “under Doctor’s care for [her] anxiety/stress due to [her] hostile/bullying work environment.” Id. On the civil cover sheet filed with her request for a TRO, she indicated th at the nature of the suit was “Employment Discrimination.” Title VII of the Civil Rights Act of 1964 may provide a remedy for harassment claims, including claims premised upon the existe nce of a hostile work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Alt hough she never specifically mentions Title VII, plaintiff’s allegations of a “Hostile/Bullying Wo rk Environment,” couple d with her indications that her suit was for “Employment Discriminatio n” and “Harassment,” fairly may be construed as a Title VII hostile work environment claim. Ac cordingly, the Court will proceed as if plaintiff asserted tort claims and an em ployment discrimination claim. 2. The Court may lack jurisdiction over plaintiff’s tort claims To the extent plaintiff asserts tort claims against defendants, sovereign immunity may shield the defendants from those claims. “The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as 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); 28 U.S.C. § 2679(b). The individual defendants here are both federal em ployees. Once the Attorney General—or his authorized designee—certifies that a federal employee was acting w ithin the scope of his or her4 employment at the time of the conduct giving rise to the claim, the “em ployee[s] are dismissed from the action, and the United States is substitu ted as defendant in place of the employee[s].” Osborn, 549 U.S. at 230. Thereafter, the claims are governed by the Federal Tort Claims Act (“FTCA”). Id. Here, the Chief of the Civil Divisi on, Office of the United States Attorney for the District of Columbia, filed such a certification, affirming that both defendants were employees of the government and were acting within the sc ope of their employment at the time of the plaintiff’s allegations. See Def.’s Opp’n Ex. 2. Thus , plaintiff’s tort claims against the individual defendants must be dismissed, the United States will be substituted as the only remaining defendant, see Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 420 (1995), and plaintiff’s tort claims will be governed by the FTCA. The U.S. Attorney’s certification that the de fendants were acting with in the scope of their employment is conclusive only for the purposes of removal, and not subs titution: plaintiff may present the Court with her objections to that cert ification and thereby resubstitute the individual defendants. See id. at 437. It s hould be noted, however, that the conduct of which she complains appears, at first blush, to be conduct usually undertaken within the scope of employment. She alleges that she was verbally admonished in fron t of other staff members and that she is enduring verbal abuse from her superiors. Compl. 1. Neve rtheless, she may challenge the certification. If she does so successfully, the case wi ll still “aris[e] under” federal la w, as that term is used in Article III, and the Court would retain subjec t-matter jurisdiction as to her common law tort claims against the resubstituted individual defend ants, subject to the Court’s discretion. See Osborn, 549 U.S. at 244-45; 28 U.S.C. § 1367 (“Supplemental jurisdiction”). If plaintiff does not successfully challenge the U.S. Attorney’s certification, her tort claims against the United States must be dism issed because she herself is a federal employee.5 The Federal Employees Compensation Act (“FECA ”), 5 U.S.C. § 8101, et seq., precludes civil actions by federal employees seeking tort recovery for injuries sustained during the course of their employment. See id. § 8116(c) (prohibiti ng “actions against the United States by an “employee, his legal representative, spouse, de pendents, next of kin, [or] any other person otherwise entitled to recover damages from the Un ited States . . . because of the [employee’s] injury or death.”). FECA “was designed to pr otect the Government fr om suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign immunity.” Lockheed Aircraft Corp. v. Un ited States, 460 U.S. 190, 194 (1983). Accordingly, FECA will bar plaintiff’s tort clai ms against the United States if th e U.S. Attorney’s certification stands. Consequently, plaintiff will be given an oppor tunity to challenge the U.S. Attorney’s certification that the defendants we re acting within the scope of th eir employment. If she elects not to challenge it, or if she unsuccessfully challe nges it, the Court will order that her tort claims be dismissed as barred by FECA. 3. The Court lacks jurisdiction over pl aintiff’s employmen t discrimination claim Defendants also argue that, under 42 U.S.C. § 2000e-16(c), the proper defendant is the current HUD Secretary. See Def.’s Opp’n. 14-15. Congress has condi tionally waived the sovereign immunity of the United States under § 2000e-16, which extends the protection of Title VII to federal employees. One condition of this waiver is that the “head of the department, agency, or unit, as appropriate, shall be the de fendant.” Id. § 2000e-16. As another court in this district has noted, “[t]his language means what it says.” Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1, 3 (D.D.C. 1998). Here, plai ntiff has not sued an agency head but instead has sued her two supervisors at HUD. Thus, because Congress has not waived the United States’ sovereign6 immunity in these circumstances, the Court must dismiss plaintiff’s em ployment discrimination claim for lack of subject-matter jurisdiction. See id. at 3. Of course, plaintiff may cure this technical jurisdictional defect by amending he r complaint to name the proper defendant. Another possible basis for finding a waiv er of sovereign immunity—and thus jurisdiction—exists: plaintiff seeks exclusively in junctive relief. See Compl. 1; TRO Mot. 1. The Administrative Procedure Act (“APA”) operates as a general waiver of the United States’ sovereign immunity from suits s eeking exclusively injunctive re lief. But even had plaintiff invoked the APA, the Court woul d still lack subject -matter jurisdiction over her employment discrimination claims. This is because the APA “ex cludes from its waiver of sovereign immunity . . . claims seeking relief expressly or impliedl y forbidden by another stat ute.” Transohio Savings Bank v. Director, Office of Thrift Supervis ion, 967 F.2d 598, 607 (D.C. Cir. 1992); see also 5 U.S.C. § 704. The Supreme Court has held that T itle VII “provides the exclusive judicial remedy for claims of discrimination in federal employ ment.” Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976). Because plaintiff is “precluded from bringing suit under other federal antidiscrimination statutes that apply more generally,” McKe nna v. Weinberger, 729 F.2d 783, 791 (D.C. Cir. 1984), § 2000e-16 forbid s injunctive relief ex cept on its own terms. Hence, the APA does not waive sovereign immunity for her empl oyment discrimination claim, and the Court lacks subject-matter jurisdiction over the APA claim. 4. Plaintiff has not met the requirement s for the issuance of a temporary restraining order The Court does not necessarily lack subject-matter jurisdiction over plaintiff’s tort claims because she has not had an opportunity to challeng e the U.S. Attorney’s We stfall certification. In addition, plaintiff easily may amend her complaint in an attempt to cure th e jurisdictional defect in her employment discrimination claim—even if defendants’ loomi ng motion to dismiss on7 several other grounds suggests that amendment w ould be futile. Having clea red the jurisdictional hurdle—for now—the Court will as sess plaintiff’s request for a TRO. The standard for issuance of the “extraordinary and drastic remedy” of a temporary restraining order or preliminary injunction is by now well-established. Munaf v. Geren, 553 U.S. 674, 689 (2007). To prevail, the moving party must demonstrate: (1) a substantia l likelihood of success on the merits; (2) that the moving party would suffer irrepara ble injury if the injunction we re not granted; (3) that an injunction would not substantially in jure other interested parties; and (4) that the public interest would be furthered by the injunc tion. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (citing Mova Phar m. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998)); see also Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on th e merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”). “If the movant makes an unusually strong show ing on one of the factors, then it does not necessarily have to make as strong a showi ng on another factor.” Davis v. Pension Ben. Guaranty Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (citing WMATC v. Holiday Tours, 559 F.2d 841, 843 (D.C. Cir. 1977)); see also Cuom o v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985) (“The test is a flex ible one [and] [i]njunctive relief may be granted with either a high likeli hood of success and some injury, or vice versa.”). The inverse, of course, is true as well—“[i]f th e plaintiff makes a particularly weak showing on one factor . . . the other factors may not be enough to compensate .” Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001); see also Hunter v. FERC, 527 F. Supp. 2d 9, 14 (D.D.C. 2007). This approach has been referred to as a “sli ding scale.” Davis, 571 F.3d at 1291. “‘Despite this8 flexibility, though, a movant must de monstrate ‘at least some injury’ for [an] injunction to issue, for ‘the basis of injunctive relief in the federa l courts has always been irreparable harm.’” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995), and Sampson v. Murray, 415 U.S. 61, 88 (1974)). The movant cannot simply make “broad conc lusory statements” a bout the exis tence of harm. Rather, she must “submit[] . . . competent ev idence into the record . . . that would permit the Court to assess whether [s]he, in fact, faces irreparable harm to h[er] professional life if an injunction is not issued.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008). This is so because the movant has the burden “to make a clear showing that irreparable injury is likely in the absence of an injunction,” not just that it is theoretically possible. Dorsey v. District of Columbia, 711 F. Supp. 2d 133, 135 (D.D.C. 2010). The Court finds that plaintiff has not made that showing here. Plaintiff has not submitted any competent evidence that would permit the Court to assess whethe r she in fact faces irreparable harm. The allegations in plaintiff’s application are conclusory—she alleges that she suffers from anxiety and stress due to an allegedly hostile and bullying work environment, and that she has been verbally reprimanded in front of her coworkers. Compl. 1. In other words, plaintiff has provided no support fo r her claims that harassment is occurring other than her bare allegations, and thus she has not de monstrated “that irreparable injury is likely in the absence of an injunction.” Dorsey, 711 F. Supp. 2d at 135. In addition, in light of the extensive administrative remedies available to plaintiff, the Court would be hard-pressed to conclude that it is likely that plaintiff will face irreparable ha rm unless the Court issues the injunction.9 Moreover, plaintiff has not established that sh e is likely to succeed on the merits. As the government points out, and as plaintiff implicitly recognizes in her TRO request, she probably has not exhausted her administra tive remedies. Def.’s Opp’n 15- 16; TRO Mot. 1. (alleging that she has filed “30 plus grievances to show that [her ] two supervisors are at fa ult, as well as filed an EEO case, as well as a Workman’s Comp cas e, [and] an OSHA case to protect [her] from bodily harm from both [of her] supervisors”). U nder Title VII, as an employee of the federal government, plaintiff may raise claims of employment discrimination, retaliation, and harassment in federal court only after she has exhausted certain administrative remedies. 42 U.S.C. § 2000e et. seq; 29 C.F.R. § 1614.407. One requirement is that she file a formal administrative complaint. She may not pursue her cl aims in federal court until the earlier of (1) a final decision on the complaint or (2) 180 days from the filing of the complaint. 42 U.S.C. § 2000e-16(c). Although she filed a formal complain t with the HUD Office of Equal Employment Opportunity in “late May or ear ly June,” it was dismissed and her appeal is currently pending before the EEOC. Def.’s Opp’n Ex. 2 (Declarati on of Theresa Marshall). Because a final action has not been taken on her complaint, and because 180 days have not passed since she filed the complaint, her claim is not yet ripe for this Cour t’s review. Hence, plain tiff has not demonstrated a “substantial likelihood” of success on the merits. In this context, where plaintiff’s showing on two of the preliminary injunction factors is particularly weak, the other f actors are unlikely to compensa te. See Morgan Stanley, 150 F. Supp. 2d at 72. It is at least uncer tain as to whether defendants w ould be substantially injured by an injunction. Winter, 555 U.S. at 20. And plaintiff has produced no argument that an injunction is in the public interest. Id. Overall, considering e ach of the relevant factors, plaintiff has not met the standard for the issuance of a temporary restraining order or pr eliminary injunction.10 Accordingly, plaintiff’s requests for a te mporary restraining order and preliminary injunction will be denied. 5. Plaintiff must respond to de fendants’ motion to dismiss Also currently before the Court is defenda nts’ motion to dismiss, filed on August 20, 2013. In Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), the Court of Appeals held that a district court must take pains to advise a pro se party of the co nsequences of failing to respond to a dispositive motion. “That notice . . . should in clude an explanation that the failure to respond . . . may result in the district court gr anting the motion and dismissing the case.” Id. at 509. In addition, the Court's local ru les state that “[w]ithin 14 days of the date of service or at such other time as the court may direct, an oppos ing party shall serve a nd file a memorandum of points and authorities in opposition to the moti on [or] the court may treat the motion as conceded.” Local Civil Rule 7(b). Accordingly, the Court will order that plai ntiff respond to the defendants’ motion to dismiss by not later than September 17, 2013. If pl aintiff does not respond by that date, the Court will treat the motion as conceded and may summ arily dismiss the complaint against the moving defendants or enter judgment in their favor. Plaintiff should include in her response any challenge to the U.S. Attorney’s certification th at the defendants were ac ting within the scope of their employment. A separate Order will be filed on this date.

/s/ JOHN D. BATES United States District Judge Dated: August 27, 2013