United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 3, 2014 Decided December 16, 2014

No. 13-7154

STEPHEN D. METZ,

APPELLANT

v.

BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01694)

Peter C. Cohen argued the cause and filed the briefs for

appellant. 

Peter Buscemi argued the cause for appellee. With him on

the brief were Robert J. Smith, Joyce E. Taber, and Lincoln O.

Bisbee.

Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.
2

GARLAND, Chief Judge: Appellant Stephen Metz has

presented us with an unusual proposition. Although he brought

this diversity case in federal district court, he would like to have

the dispositive question that he raises on appeal decided not by

this court, but by the District of Columbia Court of Appeals. To

accomplish this, he asks us to certify that question of District of

Columbia law to the Court of Appeals, without addressing the

question ourselves. Because the question on which Metz seeks

certification is neither genuinely uncertain nor of sufficient

public importance to warrant burdening the D.C. Court of

Appeals, we deny his request. And because Metz does not ask

us to independently review the district court’s resolution of that

question, we affirm the judgment of that court.

I

Stephen Metz worked at BAE Systems Technology

Solutions & Services, a defense contractor, for more than four

years. There, he led an engineering and technical services

division that supported long-term acquisition programs for the

U.S. Navy. In February 2012, the company laid him off. A

short time later, he applied for a position at ALION Science and

Technology Corporation, another defense contractor that

sometimes teamed with BAE on defense projects. ALION made

Metz an offer, and he began working there on May 14, 2012.

According to Metz’ complaint,1

 when BAE learned he was

working for ALION, BAE threatened Metz and ALION with

legal action on the ground that Metz’ employment with ALION

violated a one-year non-compete agreement between Metz and

1

Because this case comes to us on appeal from the dismissal of

Metz’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),

we accept the complaint’s factual allegations as true. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).
3

BAE. ALION responded that it did not view itself as BAE’s

competitor, and it offered to take steps to ensure that there

would be no competition between the two companies as a result

of Metz’ employment with ALION. BAE nonetheless continued

to insist that ALION cease employing Metz. Finally, on June

15, 2012, fearing both legal action and economic retaliation

from BAE, ALION terminated Metz’ employment.

On October 16, 2012, Metz brought suit in the U.S. District

Court for the District of Columbia, alleging that BAE had

tortiously interfered with his at-will employment arrangement

with ALION in violation of District of Columbia law.2

 The

amended complaint based federal jurisdiction on the diversity of

citizenship of the parties. See Am. Compl. ¶¶ 11-12.3 BAE

moved to dismiss Metz’ complaint, arguing that Metz could not

state a claim for tortious interference with contractual relations

because the District of Columbia does not recognize such a

claim when the plaintiff was an employee at will. The district

court granted BAE’s motion, Metz v. BAE Sys. Tech. Solutions

& Servs., Inc., 979 F. Supp. 2d 26 (D.D.C. 2013), and Metz

timely appealed the dismissal of his tortious interference claim.

On appeal, Metz does not argue the merits of that claim and

does not ask us to reverse the judgment of the district court

based on our view of the merits. Instead, he asks only that we

2

The complaint also contained four other claims, two of which

Metz voluntarily dismissed and two of which the district court

dismissed. See Metz v. BAE Sys. Tech. Solutions & Servs., Inc., 979

F. Supp. 2d 26, 29-33 (D.D.C. 2013). Metz does not raise any of

those claims on this appeal.

3

The complaint also cited 28 U.S.C. § 2201(a) as establishing the

district court’s “jurisdiction to issue declaratory relief.” Am. Compl.

¶ 13. But see infra note 8.
4

certify to the D.C. Court of Appeals the question of whether

District of Columbia law “recognize[s] a cause of action for

tortious interference with at will employment against a third

party former employer who procured the plaintiff’s discharge

from his new employer.” Metz Br. 2.4 Reversal will only be

required, he explains, if we do so certify and if, in response, the

D.C. Court of Appeals holds that the District recognizes such a

cause of action. By the same token, Metz acknowledges that, if

we decline to certify the question, we must affirm the judgment

of the district court. See Oral Arg. Recording 12:35. 

Accordingly, we limit our consideration to the issue of

certification.

II

A federal court sitting in diversity must apply the

substantive law of the jurisdiction in which it sits. Erie R.R. Co.

4

That is the core question posed by Metz. He also proposes

several embellishments, including asking whether the District

recognizes such a cause of action when the third-party former

employer procured the discharge “for an improper or illegal purpose.”

Metz Br. 2. We do not discuss that embellishment, however, because

just as there is no decision of the D.C. Court of Appeals finding “a

cause of action for tortious interference with at will employment

against a third party former employer who procured the plaintiff’s

discharge from his new employer,” there is no decision finding such

a cause of action where a third party procured the discharge “for an

improper or illegal purpose,” id. Accordingly, like the core question

discussed in the text of this opinion, the embellished question depends

upon the possibility that the D.C. Court of Appeals might adopt an

exception to its “general rule . . . that a tortious interference claim may

not proceed with respect to at will employment.” Reply Br. 3-4; see

infra Part II. And we have held that such a mere possibility is

insufficient to warrant certification of a question to that court. See

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012).
5

v. Tompkins, 304 U.S. 64 (1938). This rule applies to a court

sitting in the District of Columbia. Novak v. Capital Mgmt. &

Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006). “Our duty,

then, is to achieve the same outcome we believe would result if

the District of Columbia Court of Appeals considered this case.” 

Id. Ordinarily, we fulfill this obligation by looking to the

published opinions of the D.C. Court of Appeals. Rogers v.

Ingersoll-Rand Co., 144 F.3d 841, 843 (D.C. Cir. 1998).

Under the D.C. Code, however, the 

District of Columbia Court of Appeals may answer

questions of law certified to it by . . . a Court of

Appeals of the United States . . . if there are involved

in any proceeding before any such certifying court

questions of law of the District of Columbia which

may be determinative . . . and as to which it appears to

the certifying court there is no controlling precedent in

the decisions of the District of Columbia Court of

Appeals.

D.C. Code § 11-723(a). “The use of such certification

procedures ‘in a given case rests in the sound discretion of the

federal court.’” Joy v. Bell Helicopter Textron, Inc., 999 F.2d

549, 563 (D.C. Cir. 1993) (quoting Lehman Bros. v. Schein, 416

U.S. 386, 391 (1974)). Three considerations lead us to decline

to certify the question that Metz poses.

1. The “‘most important consideration’” is that the question

upon which Metz seeks certification is not “‘genuinely

uncertain.’” Joy, 999 F.2d at 563 (quoting Tidler v. Eli Lilly &

Co., 851 F.2d 418, 426 (D.C. Cir. 1988)); see Schuchart v. La

Taberna Del Alabardero, Inc., 365 F.3d 33, 34 (D.C. Cir. 2004). 

Metz maintains that it is uncertain whether District of Columbia

law permits a claim of tortious interference with at-will
6

employment against a third party to the at-will arrangement

because there is a conflict between two sets of D.C. Court of

Appeals cases. He acknowledges that three decisions “establish

a general rule in the District of Columbia that a tortious

interference claim may not proceed with respect to at will

employment.” Reply Br. 3-4; see Futrell v. Dep’t of Labor Fed.

Credit Union, 816 A.2d 793, 806-08 (D.C. 2003); McManus v.

MCI Commc’ns Corp., 748 A.2d 949, 957 (D.C. 2000); Bible

Way Church of Our Lord Jesus Christ of the Apostolic Faith v.

Beards, 680 A.2d 419, 432-33 (D.C. 1996). Nonetheless, Metz

contends that three other decisions keep “the door open” to such

claims when the interference is perpetrated by a third party to

the at-will arrangement. Reply Br. 13; see Little v. D.C. Water

& Sewer Auth., 91 A.3d 1020 (D.C. 2014); CASCO Marina

Dev., LLC v. D.C. Redev. Land Agency, 834 A.2d 77 (D.C.

2003); Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads,

Inc., 565 A.2d 285 (D.C. 1989). We do not agree that the state

of the law is “genuinely uncertain.”

The three cases that Metz acknowledges as contrary to his

view rest their holdings on the principle that an at-will employee

does not have an employment contract for purposes of tortious

interference with contractual relations. See Futrell, 816 A.2d at

807 (“Futrell was an at-will management employee, who could

be discharged at any time and for any non-discriminatory

reason. . . . Given our conclusion that no employment contract --

express or implied -- existed between Futrell and [her

employer], she cannot establish a prima facie case of intentional

interference with contractual relations . . . .”); McManus, 748

A.2d at 957 (“It is clear that, as an at-will employee, appellant

did not have a contractual employment relationship she could

use as the basis for a suit for tortious interference with a

contractual relationship.”); Bible Way, 680 A.2d at 433

(“[Plaintiffs] failed to cite in the complaint any facts which, if

taken as true, would rebut the presumption of at-will
7

employment. . . . Accordingly, there was no basis for either a

breach of contract or a tortious interference with contract claim

. . . .”). Moreover, two of the three cases involved suits against

third parties to the plaintiffs’ employment arrangements. See

Futrell, 816 A.2d at 798, 807-08; McManus, 748 A.2d at 957-

58.5

Conversely, two of the cases that Metz cites as supporting

his contention that this principle has an exception when the case

is brought against a third party do so only by implication. 

Although each allowed such a claim for tortious interference

with an agreement that was terminable at will, neither addressed

the question of whether the at-will nature of the agreement

precluded the claim. See Sorrells, 565 A.2d at 290-91 (holding

only that, although a party cannot interfere with its own contract,

a supervisor who is not an officer of a plaintiff’s employer is not

a party to the plaintiff’s employment contract and therefore can

interfere with it); CASCO, 834 A.2d at 83-84 (reciting the result

in Sorrells, but relying on it only for the proposition that

inducing a failure to perform, rather than a breach of, a contract

is sufficient to establish an element of tortious interference).6

5

One of the Futrell defendants was a bonding company, a third

party to the plaintiff’s employment agreement. Futrell, 816 A.2d at

798, 807-08. Two of the McManus defendants were the plaintiffemployee’s supervisors, McManus, 748 A.2d at 951-52, a position the

D.C. Court of Appeals regards as not a party to a subordinate’s

employment agreement, see Sorrells, 565 A.2d at 290.

6

Metz acknowledges that “the supervisor in Sorrells, for reasons

unknown, did not directly invoke the at will status of the plaintiff as

a defense to the claim,” but argues that “the effect of Sorrells” was to

permit the claim to proceed. Reply Br. 7. Metz also acknowledges

that “Casco was not an at will employment case,” but submits that it

“is Casco’s discussion of Sorrells that matters.” Id. at 9.
8

The third case that Metz cites, Little v. D.C. Water & Sewer

Authority, does not support his contention at all. To the

contrary, Little noted that the appellant in that case

“understandably” did not press his claim for tortious interference

with contractual relations, citing McManus for the proposition

that “‘[a]s an at-will employee, appellant did not have a

contractual employment relationship []he could use as the basis

for a suit for tortious interference with a contractual

relationship.’” Little, 91 A.3d at 1029 & n.10 (quoting

McManus, 748 A.2d at 957). Although Little followed its

citation to McManus with a “but see” citation to Sorrells, the

Little court’s treatment of the two cases indicates that it regarded

McManus as controlling. See id. 

Accordingly, rather than being genuinely uncertain, it is

“reasonably clear,” Dial A Car, Inc. v. Transp., Inc., 132 F.3d

743, 746 (D.C. Cir. 1998), that the general rule in the District of

Columbia is that an at-will employment agreement cannot form

the basis of a claim of tortious interference with contractual

relations. See United States v. Old Dominion Boat Club, 630

F.3d 1039, 1047 (D.C. Cir. 2011) (explaining that local law is

not “genuinely uncertain with respect to a dispositive question

. . . . [i]f . . . there is a discernible path for the court to follow”

(quoting Dial A Car, 132 F.3d at 746)). Although Little appears

to recognize that the result in Sorrells is inconsistent with that

rule, no D.C. case holds to the contrary. Metz’ certification

request is thus based merely upon the “possibility that the D.C.

Court of Appeals might adopt [an] exception[] to its general

rule” -- a ground we have held insufficient to warrant

certification. Rollins v. Wackenhut Servs., Inc., 703 F.3d 122,

129 (D.C. Cir. 2012).

Needless to say, nothing we have said would preclude the

D.C. Court of Appeals from adopting the exception Metz seeks

-- or from changing its rule altogether. It might be argued, for
9

example, that until a contract terminable at will has been

terminated, “the contract is valid and subsisting, and the

defendant may not improperly interfere with it.” RESTATEMENT

(SECOND) OF TORTS § 766 cmt. g (1979).7 But the possibility

that the D.C. Court of Appeals might reverse its previous course

if presented with the question anew does not render the question

“genuinely uncertain.” 

2. Not only is the question Metz poses insufficiently

uncertain, it is also insufficiently significant. In the past, we

have granted certification where a “‘case is one of extreme

public importance’ in which the District of Columbia has a

‘substantial interest.’” Joy, 999 F.2d at 564 (quoting Eli Lilly &

Co. v. Home Ins. Co., 764 F.2d 876, 884 (D.C. Cir. 1985)); see

Sturdza v. United Arab Emirates, 281 F.3d 1287, 1303 (D.C.

Cir. 2002). We have also certified where we found the question

to be on “a matter of public importance, in which the District of

Columbia has a substantial interest,” without insisting that the

importance be “extreme.” Schuchart, 365 F.3d at 37 (citations

omitted); see also DeBerry v. First Gov’t Mortg. & Investors

Corp., 170 F.3d 1105, 1110 (D.C. Cir. 1999) (certifying a

question where “the answer will have significant effects on

District of Columbia mortgage finance practice”). But however

described, this factor demands that the District’s interest be

7

See Haddle v. Garrison, 525 U.S. 121, 127 (1998) (“Th[e]

protection against third-party interference with at-will employment

relations is still afforded by state law today.”); KEETON ET AL.,

PROSSER AND KEETON ON TORTS § 129, at 995-96 (5th ed. 1984)

(“[E]minent legal writers to the contrary notwithstanding, the

overwhelming majority of the cases have held that interference with

employment or other contracts terminable at will is actionable, since

until it is terminated the contract is a subsisting relation, of value to

the plaintiff, and presumably to continue in effect.” (footnotes

omitted)).
10

something more than that the question is one of District law, else

every diversity case would come within its compass. Yet, Metz’

briefs contain no argument whatsoever that the question he

poses is one of substantial interest to the District.

Moreover, an even higher threshold of importance to the

District applies here. As Metz acknowledges, on his theory --

that there are two lines of conflicting District precedent on the

question -- the only way the D.C. Court of Appeals could

resolve the alleged uncertainty would be to hear the case en

banc. Oral Arg. Recording 25:23. And we do not discern any

interest sufficiently important to impose that kind of burden on

the D.C. Court of Appeals.

3. Still another factor counsels against granting certification

in this case. The plaintiff “chose to litigate” this case in federal

district court, “fully aware” of the two lines of District precedent

that he sees as conflicting. Tidler, 851 F.2d at 426. And as we

have said before, “‘[o]ne who chooses the federal courts in

diversity actions is in a peculiarly poor position to seek

certification.’” Id. (quoting Cantwell v. Univ. of Mass., 551 F.2d

879, 880 (1st Cir. 1977)); see WRIGHT, MILLER, COOPER &

AMAR,FEDERAL PRACTICE &PROCEDURE § 4248, at 509 (3d ed.

2007) (“[T]he court should be slow to honor a request for

certification from a party who chose to invoke federal

jurisdiction.”). 

This is not to say that we will always decline to certify a

question when the requester is a plaintiff who sued in federal

district court (or a defendant who removed the case to that

court). Indeed, we have certified questions in such

circumstances. See, e.g., Doe ex rel. Fein v. District of

Columbia, 93 F.3d 861, 872-76 (D.C. Cir. 1996) (granting a

request to certify by a plaintiff who filed in federal district

court). But in this case, the factor is magnified by the manner in
11

which Metz has attempted to structure his case. Although he

filed his suit in federal district court and presented his initial

arguments there, he now seeks appellate review only by the D.C.

Court of Appeals, expressly declining to ask this court to

address the merits of his argument. Metz explains that he

adopted this approach because it was more intellectually honest

in light of what he perceived as the confused state of District of

Columbia law. Oral Arg. Recording 5:03. Although we

appreciate Metz’ candor, if it were important to have the D.C.

Court of Appeals clarify District of Columbia law, he could and

should have brought his suit in the Superior Court of the District

of Columbia. He did not do so, and we are not inclined to

permit parties to so easily mix and match their favorite

combinations of trial and appellate courts.8

8

In his reply brief and at oral argument, Metz suggested that he

brought his suit in federal district court because it contained a federal

cause of action, namely a claim for relief under the federal Declaratory

Judgment Act, 28 U.S.C. § 2201. The Declaratory Judgment Act,

however, does not “provide a cause of action.” Ali v. Rumsfeld, 649

F.3d 762, 778 (D.C. Cir. 2011). Moreover, “[i]t is a well-established

rule that the Declaratory Judgment Act is not an independent source

of federal jurisdiction. Rather, the availability of [declaratory] relief

presupposes the existence of a judicially remediable right.” Id.

(internal quotation marks omitted); see Medtronic, Inc. v. Mirowski

Family Ventures, LLC, 134 S. Ct. 843, 848 (2014); Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Indeed, Metz’

complaint therefore appropriately relies only on 28 U.S.C. § 1332(a)

(diversity jurisdiction) as the source of the district court’s jurisdiction;

it does not cite 28 U.S.C. § 1331 (federal question jurisdiction). See

Am. Compl. ¶¶ 11-17. Nor did Metz need to file in federal court to

obtain declaratory relief; the Superior Court of the District of

Columbia has authority to provide such relief as well. See D.C. SUP.

CT. R. CIV. P. 57 & cmt. (citing D.C. Code. § 11-921). 
12

III

For the foregoing reasons, we decline Metz’ request to

certify his proposed question to the District of Columbia Court

of Appeals. Because Metz does not ask us to evaluate the merits

of that question ourselves, the district court’s judgment is

Affirmed.