UNITED STAT ES DIS TRICT COURT

DISTRICT OF COLUMBIA

_____________________________________________ JOHN MINNICK, P laintif f,
v. 1:10-CV -2109 (F JS) KA TRINA CARLILE, Defendan t.

_____________________________________________ AP P EARANCES OF COUNSEL ALSTO N & BIRD, LLP MARIA NNE R. CASSERLY, ES Q. 950 F Stree t, NW Washington, D.C. 20004 Attorney s for Plaintiff UNITED STAT ES DEPARTMENT RHONDA LISA CAMP BEL L, ES Q. OF JUSTICE 555 Four th Street, NW E4412 Washington, D.C. 20001 Attorney s for De fenda

nt SCULLIN, S enior Judge

MEMORAN DUM- DECISION AND ORDER

I. INTRODUCTION Currently befor e the Court is the United States' motion on behalf of De fenda nt, its former employ ee, pur suant to Rules 12(b)(1) and 12(b) (6) of the Fe dera l Rules of Civil Procedur e to dismiss the complaint on the g rounds that sovere ign immunity bars Plaintiff' s claims and that Plaintiff has failed to e x haust his administrative reme dies. The United States a lso asks that the Court formally

substitut e the United States f or De fenda

nt as the sole De fenda

nt in this action.II. BACKG ROUND Plaintiff, an employ ee of

the United States De partment of H omeland Secur ity (" DHS") , filed a c omplaint in the Superior Court for the District of Columbi a on Oc tober 19, 2010, a g ainst Def endant, a former intern with DHS. In his complaint, Pl aintiff asse rted the f ollowing e leven
cause s of ac tion: (1) rec kless disreg ard f or the truth/fra

ud (ora l statements); (2) r eckle ss disreg ard for the tr uth/fraud ( written statements); ( 3) def amation; (4) ne g lige nt infliction of emotional distress (ora l statements); (5) ne g lige nt infliction of emotional distress (written stateme nts); (6) intentional infliction of emotional distress (oral state ments); (7) intentional infliction of emotional distress (written state ments); (8) injurious fa lsehood (ora l statements); (9) injurious falsehood ( written statements); ( 10) fa lse light (or al statements); a nd (11) f alse light (written statements). See ge nerallyComplaint. Specifica lly , Plaintiff alleg ed that De fenda nt had made f

alse a nd disparag ing statements to her super

visors about Plaintiff' s work per formanc e while he was a ssigne d to work in Texas and that these statements had led to a n investigation by

DHS' s Offic e of Sec urity (" OS") , the suspension of his secur ity clea ranc e, and to his plac ement on unpaid a dminist rative le ave in November

2009. 1 On Dec ember

13, 2010, actingpursuant to 28 U.S.C. § 2679(d), Rudolph Contreras, Chief of the Civil Division of the United States Attorney ' s Offic e for the District of Columbia,
cer tified that, at the time of the a lleg ed incidents de scribed in the c omplaint, Defe ndant was actingwithin the scope of he r employ ment as a United States employ ee. B ased on this

DHS' s Chief Security

Offic er r einstated Plaintiff' s secur ity clea ranc e on Oc tober 22, 1 2010, and he r eturne d to work at DH S at that time. -2-cer

tification, the United States re moved the ac tion to thi s Court. 2 The United States ba ses its moti on to dismi ss on the followingtheories: (1) the United States should be substitut ed as the sole Def endant in this action bec ause Plaintiff sued D efe ndant for c onduct within the scope of her e mploy

ment; and, thus, this action arises, if at all, under the Fe dera l Tort Claims Act (" FTCA" ) and f eder al employees c annot be sue d persona lly for their alleg edly tortious conduct; (2) sove reign immunit y bars Plaintiff' s tort claims beca use the United States has not waived its sover eig n immunit y under the FTCA with re spect to cla ims arising under, a mong othe r thing s, libel, slander, misrepr esentation or dece it; and (3), eve n if the F TCA encompa ssed claims such a s Plainti ff' s, he has not exhausted his administrative re medies under the FT CA, which is a pre requisite to filinga complaint in fe dera l court. Plaintiff opposes this mot ion on the g round that De fenda nt was not ac ting within the scope of her e mploy

ment when the a lleg ed ac tions occurr ed and, the ref ore, c ertifica

tion under § 2679 was improper , and the United States should not be substituted as the de fenda nt in this
case . Plaintiff does not addre ss the United States' arguments conce rningthe FT CA. The Court hea

rd ora l argument in support of, and in opposition to, the United States' motion on August 29, 2012, and r eser ved dec ision at that tim e. The Court also provided the parties with an oppor

tunity to submitadditional briefingon the issue of whe ther c ertifica tion under § 2679 w as prope r, which Plaintiff did on September 5, 2012, seeDkt. No. 13. The followingconstitutes the Court's written resolution of the pe nding motion.

The United States c ontends that Plaintiff has not filed an a dminist rative c laim with DHS 2 and has ne ver se rved the United States Attorney as Rule 4(i) of

the Fe dera l Rules of Civil Procedur e re quires. -3-III. DISCUSS ION

A. P relim inary m atte rs Duringoral a

rgument, the Court asked Plaintiff whe ther he conce ded that, if the Court
wer e to find that the United States should be substituted as De fenda nt, the Court lacked subje ct matter jurisdiction over his c laims beca use he ha d not exhausted his adminis trative re medies under the FTCA. In response , Plaintiff conce ded this point.

B. Westfall Act ce rtification The F eder al Employ ees L iability Reform a nd Tort Compensation Act of 1988, a lso known as the Westfa ll Act, "' acc ords fe dera l employ ees a bsolute immuni ty

from common-la

w tort claims arisingout of ac ts they undertake in the cour se of their officia l duties.'" Jack

son v. United States , 857 F. Supp. 2d 158, 160 (D.D .C. 2012) (quotation omitted). Under the Westfall Act, " ' when a

fede ral e mploy ee is na

med in a tort suit, the Attorney Gene ral or his de signe es may
cer tify that the employ ee w as " acting within the scope of his off ice or employ ment at the time of the incident out of whic h the claim ar ose." ' " Id. (quotation omitted). Pursuant to § 2679(d) of Title 28 of the United State Code,

[u] pon cer

tification . . . any

civil action . . . commenc ed upon such claim in a State cour

t shall be remove d . . . to the district court of the United States for

the district . . . embra cingthe place in which the ac tion . . . is pending. Such a ction . . . shall be dee med to be an action . . . brought ag ainst the United States under the provisions of [t he F eder al Tort Claims Act] . . ., and the United States shall be substitut ed as the party

defe ndant. . . . 28 U.S.C. § 2679(d)(2). A Westfall Act ce rtification is conc lusive for the pur pose of r emoval, see28 U.S.C.
-4-§ 2679(d)( 2), but " ' [a] plaintiff may contest the Attorne y

Gene ral' s scope- of-e mploy ment
cer tification befor e a district c ourt.' " Jack son , 857 F. Supp. 2d at 160 (quotation omit ted). I f a plaintiff cha lleng es the scope -of- employ ment cer tification, " the ce rtification ' constitute[s ] prima fac ie evidenc e that the e mploy ee w as ac ting within the scope of his employ ment.' " Id. (quotation omitted). To rebut the c ertifica tion and, there by , obtain any nece ssary

discovery , "a

plaintiff must 'a lleg [e] sufficie nt fac ts that, taken as true , would establish that the def endant[' s] actions exceede d the scope of [his] employ ment.' " W

uterich v. M

urtha , 562 F.3d 375, 381 ( D.C. Cir. 2009) (quotation omitted). I f a pla intiff meets this pleadingburden, the court may , if nec essar y , allow the plaintiff to conduc t "limited discovery " to r esolve a ny fac tual disputes over jurisdiction. See id . (citation omitted). Howe ver, " ' [n] ot ever y complaint will warra

nt further inquiry into the scope- of-e mploy

ment issue.' " Id. (quotation omitted). There fore , if " a plaintiff f ails to alleg e sufficie nt fac ts to rebut the ce rtification, the United States must be substituted as the de fenda nt beca use the fe dera l employ ee is a bsolutely immune from suit." Id. To deter mine whether

an employee w as ac ting within the scope of her employ ment within the meaningof the Westfall Ac t, "' courts apply the respondeat superior

law of the state in which the a lleg e tort occ urre d.' " Taylor v. Clark , 821 F. Supp. 2d 370, 373 (D.C. Cir. 2011) (quotation omitted). District of Columbia law, which g overns this ca se, def ines " scope of employ ment" in a ccor d with the Restatement (Sec ond) of Ag ency . See id. (quotation omitted). Under the Restatement ( Second) of Ag ency , "[c]onduct of a se rvant is within the scope of employ ment if, but only if: (a) it is of the kind he is employ ed to per form; (b) it occ urs substantially within the authorized time and spac e limits;
-5-(c) it is actuated, at least in part, by a purpose to serve the master, a

nd (d) if f orce is intentionally

used by the serva nt ag ainst another, the use of f orce is not unex pecta

ble by the master." Id. (quotingRestatement (Sec ond) of Ag ency § 228(1))

"' [T] he test for

scope of employ ment is an objective one , based on a ll the fac ts and circ umstances.' " Id. (quotation omitted). "' Although sc ope of e mploy ment is ge nera lly

a question for the jury , it "bec omes a que stion of law for the court, howe ver, if the re is not sufficie nt evidence from which a rea sonable juror

could conc lude that the ac tion was within the scope of the employ

ment."' " Upshaw v. United States , 669 F. Supp. 2d 32, 40 (D.D .C. 2009) (quotation omitted). At the motion to dis miss st ag e, a pla intiff must alleg e fa cts that, if true, w ould establish that the def

endant a cted outside the sc ope of he r employ ment. See id. at 41 (c itation omit ted). Reg ardingthe first prongof the scope -of- employ ment test (whethe r the a lleg ed conduc t is of the kind the person is employ ed to per form), " ' [t ]o qualify as conduc t of the kind [the indivi dual Fe dera l Defe ndants wer e] employ ed to per form, the[ir] actions musthave e ither bee n "of the same g ener al nature as that authorized" or " incidental to the conduct a

uthorized."' " Id. (quotation omitted). "' Conduct is "incidenta l" to an e mploy ee' s leg itimate duties if it is "f orese eable ."' " Id. (quotation omitted). Where the pla intiff has alleg ed an intentional tort, the de fenda nt's c laimed tortious conduct " ' must be "a direc t outgr owth of the e mploy ee' s instructions or job assig nment."' " Id. (quotation omitted). Courts construe the te rm " incidental" very broadly in this context. See id. (citations omitted). Courts routinely find that a fe dera l employ ee' s statements made dur ing the course of g overnme nt investigations fall within the scope of that e mploy ee' s

-6-duties, even when the state ments are alleg ed to be f alse or de famatory
. See id. at 42 (c iting Klugel v. Small , 519 F. Supp. 2d 66, 74 (D.D .C. 2007) (findingthat fede ral e mploy ees w ere actingin the scope of

employ ment when they

made a lleg edly

defa matory statements to the ag ency' s inspector g ener al duringan investig ation into plaintiff's imprope r use of officia l travel); Hosey v. Jac obik, 966 F. Supp. 12, 14-15 (D .D.C. 1997) (findingthat fede ral e mploy ee' s alleg edly defa matory statements to investigator duringa g overnme nt security clea ranc e investigation were made within the scope of employ ment); Brumfield v. Sanders , 232 F.3d 376, 380-81 (3r d Cir. 2000) (findingunder Restatement (Sec ond) of Ag ency that employees w ere actingwithin the scope of e mploy ment when they

made a lleg edly

false, de famatory

statements about plaintiff to g overnme nt investigator duringinvestigation reg arding plaintiff' s unprofe ssional conduct))
. Wit h respe ct to the third prongof the scope -of- employ ment test (whethe r the a lleg ed conduct wa s actuated, at lea st in party , by a purpose to serve the master) , the District of Columbi a Circuit has he ld that "' even a partial desire to se rve the master is suffic ient' to satisfy this . . . prong." Upshaw , 669 F. Supp. 2d at 43 (quoting Council on Am. Islamic Re lations , 444 F.3d at 664). In challeng ing the Westfall Act ce rtification, Plaintiff asser ts that Defe ndant' s statements "a ssessing the leg itimacy

of the wor

k that [he] perf

ormed while he was de tailed to Texas were [not ] m ade w ithin the scope of he r duties as a n unpaid student intern . . . ." SeeDkt. No. 4 at 12. Plaintiff further

contends that ther e ar e two sets of state ments at issue in this case: (1) Def endant' s oral stateme nts that she made in or a bout March 2009 to he r super visors when she returne d from her

trip to Texas with P laintiff and ( 2) the wr itten declar ation that Def endant
-7-signe d on September 28, 2009, f ive months after

her inter nship with the DHS Office of Policy ended. See id. Wit h respe ct to Def

endant' s oral stateme nts, Pl aintiff alleg es that they wer e fa r outside the
rea lm of work that De fenda nt was employ ed to per form. See id. at 13. Her job function was to lear n the func tions of the Ag ency and to g ain profe ssional work experienc e. See id. (citing Martinez-F onts Dec. ¶

7). F urthermor e, De fenda nt was invited on the Texas trip solely as a courte sy beca use the DH S employ ees who invited her thoug ht that she would be intere sted n workingon Hurric ane Ike re cover y eff orts in light of the f

act that she was fr om Texas. See id. (citingMinnick Dec . ¶ 7). He r role on the trip was to attend mee tings a nd then assist Marvin F ell with any resultingeconomic a

naly sis. See id. (citingMartinez-F onts Dec. ¶ 10; Minnick Dec. ¶ 7). Plaintiff ar gues that for Def endant to re turn from that trip and ma ke stateme nts assessing the leg itimacy

of the wor

k that Plaintiff was doingand opining , amongother thing s, that Plainti ff had no demonstrated re cord of any actua l acc omplishm ents duringthe entire ty of his detail assig nment is clear ly

far beyond the scope of her

employ ment and fa

r beyond the duties that she
was e mploy ed to per form as a n unpaid student intern. See id. at ¶ 14. Plaintiff also notes that, based on the evidenc e that DHS has pr ovided to him about its investigation of him, there wa s no investigation until some point after Marc h 27, 2009, when Mr. Martinez-F onts left DHS. See id. at 14 (c iting Mar tinez-Fonts Dec . p 12). Thus, Plaintiff asser ts that Def endant' s statements, which she ma de shortly afte r re turningfrom Te x as on Mar ch 6, 2009, wer e not made in c onnection with an ong oing inve stigation. See id. Rather, Plaintiff claims that the evide nce sug g ests that Def endant' s complaints were the re ason why DHS
commence d an investig ation. See id.
-8-Wit h respe ct to whether Def endant' s conduct wa s actuated, at lea st in part, by a purpose to serve he r employ er, Plaintiff a sserts that, bec ause the conduct at issue is so clearly not of the kind that Defe ndant was e mploy ed to per form, any analy sis of this pointmay be unnec essar

y . See id. at 15. Howe ver, Plaintiff notes that, whatever Def endant' s motives were , they appea r to be more aimed at de famingPlaintiff then serving any purpose of

DHS. See id. Wit h respe ct to Def

endant' s September 2009 wr itten statements, Plaintiff notes that, at the time of these state ments, Defe ndant was no long er e mploy ed at DH S. See id. at 15. Ther efor e, Plaintiff argues that these sta tements ca

nnot be the kind of wor

k that she wa s employ ed to perf orm. See id. Finally , Plaintiff notes that, "[b]ecause the Westfall cer tification is invalid . . ., the United States should not be substit uted as the de fenda nt [ and] [ c]onsequently , all rema ining a rguments in the Motion to Dism iss should be denied as moot." See id. at 17. In response to Plainti ff' ' s challeng e to Westfall Act ce rtification, the United States a rgues that, duringthe cour se of a n officia l investigation, DHS officials aske d Def endant a bout her observations of Plainti ff' s conduct whe n she and Plaintiff we re on te mporary duty assig nment in Texas and that it was par

t of Def endant' s duties to respond truthfully to those questions. SeeDkt. No. 5 at 7. Fur thermore , the United States conte nds that Plainti ff' s argument that, beca use De fenda

nt made he r written state ment afte r she lef t employ ment at DHS, that statement wa s not within t he authorized time and spac e limits of her employ ment lacks merit. See id. at 8. Fir st, Defe ndant provided he r ora l statement to DHS officia ls during nor mal duty hours shortly

afte r she r eturne d to D.C. from Texas. See id. The United States c laims that Defe ndant' s written statements simply
-9-memorialize her pr ior oral state ments and thus wer e substantially within the authorized time and space limit s of her

employ ment. See id. at 9 (c itations omi tted). Wit h reg ard to the third pr ongof the scope -of- employ ment test, the United States asser ts that Def endant' s alleg edly

defa matory statements foc used solely on Plaintiff's w ork per formanc e in Texas. See id. Fur

thermore , Deputy

Direc tor Tra cy

Hanna h was c oncer

ned about the a

bility of DHS' s budg et to sustain Plainti ff' s continuing pr esenc e in Texas, coupled with his ac tiviti es in Texas duringthe seve n month period he wa s assig ned to Texas beca use he ha d not provided his supervisors with any

work produc t or repor

ts related to his ac tiviti es in Texas. See id. at 9-10 (citingDec l. Hannah at ¶¶ 3-5) . There fore , the United States conte nds that Defe ndant' s statements wer e motivated, at lea st in part, by her de sire to serve DHS. See id. at 10. Fur thermore , the United States asse rts that Plaintiff has not pled any fac ts that Defe ndant' s conduct wa s not moti vated in any way by a desire to serve D HS. See id. Ba sed on all the e vidence in the rec ord, the Court conc ludes that Plaintiff has not alleg ed sufficie nt fac ts to rebut the pre sumption that the Westfall Act c ertification is valid. I n rea ching this conclusion, the Court has ca ref ully considere d all three prong s of the scope -of- employ ment test: (1) whe ther De fenda nt's c onduct was of

the kind she wa s employ ed to per form; (2) whether Def endant' s conduct oc curr ed substantially within the authorized time and space limit s; and (3) whether Def endant' s conduct wa s actuated, at lea st in part, by a purpose to serve he r employ er, DHS. Wit h reg ard to the f irst prong , Plaintiff does not alleg e or a rgue that De fenda

nt's or al and written statements we re unsolicited. Nor does Plaintiff argue that Ms. Hanna h' s rendition of the circ umstances unde r which D efe ndant made the se statements wa s false. B ased on the
-10-uncontrove rted re cord, it is clea r that Ms. Hanna

h asked D efe ndant some spec ific questions about her obse rvations of Plaintiff' s perf ormanc e duringthe trip that Def endant made to Texas with Plaintiff, and Def

endant r esponded to those que stions. C lear ly , respondingto the questions of her supe rvisor wa s incidental to Def endant' s employ

ment at DHS. In other wor ds, Defe ndant' s
answe rs to Ms. Hannah' s questions were a dire ct outgrowth of the instruc tions Defenda nt
rec eived f rom Ms. Hanna

h, i.e., to provide he r obser vations and impressions about Plaintiff' s perf ormanc e duringtheir trip to Texas. Wit h respe ct to the sec ond prong , Def endant c lear ly

made he r ora l statements to Ms. Hanna h while in the DHS offic e while she was a n intern in that offic e. F urthermor e, althoug h she made her written statements af ter she ha d returne d to school, those statements mere ly memorialized her pr evious statements, a f act that Plaintiff does not dispute. The Court finds that, under the se circ umstances, De fenda nt's written statements satisfy the time and spac e require ments. Finally , with respec t to the third prong , Plaintiff has not alleg ed fa cts, which a cce pted as true, would support a

findingthat Def

endant' s conduct wa s not actuate d, at least in par t, by a purpose to ser

ve DHS. Althoug h Plaintiff conjectur es about possible per sonal motives for Def endant' s statements, the fa cts demonstrate that none of D efe ndant' s statements wer e unsolicited. Her supe rvisor questioned he r about he r impressions of Plaintiff' s perf ormanc e duringher trip to Te x as, and she responde d to those questions. Pl aintiff has not a lleg ed any fac ts to demonstrate that De fenda nt's a ctions were not, at least in part, a ctuated by a purpose to serve DHS. In sum, for all of the a bove-state d rea sons, the Court concludes that the Westfall Act

-11-cer

tification is valid. There fore , the Court will substi tute the United States as the sole Def endant in this case and c onvert this action to one unde r the F eder al Tort Claims Act. As noted, Plaintiff acknow ledg ed at or al ar gument that, if the Court rea ched this conc lusion, the Court would lack subject matter jur isdiction over his claims beca use he f ailed to exhaust his adminis trative
reme dies. Ther efor e, the Court must dismis s this case for lack of jurisdiction. Alternatively , even if Plaintiff had exhausted his administrative reme dies, the Court would have to dismi ss Plaintiff's c laims beca

use the United States ha s not waived its sovere ign immunity under the Fe dera l Tort Claims Act for the ty pe of c laims that Pl aintiff asse rts in this action.

IV. CONCLUSION Acc ording ly , havingrevie wed the e ntire file in this matter, the pa rties' submissi ons and oral a rguments, and the a

pplicable law , and for

the above -stated r easons, the Court he reby ORDERS that the United States' motion to di smiss Defenda nt from this case a

nd substitut e the United States a s the only Def endant is GR

ANTED ; and the Court furthe r ORDERS that the United States' motion to di smiss t his case pur suant to Rules 12(b)(1) and 12(b) (6) of

the Fe dera l Rules of Civil Procedur e is GR ANTED ; and the Court furthe r ORDERS that the Clerk of the Court shall enter judg ment in favor of the United States and close this case. IT IS SO ORDERED. Dated: May

28, 2013 Sy rac use, Ne w York

-12-