United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2013 Decided July 26, 2013 

No. 12-5107 

LINDA JACOBS, 

APPELLANT

v. 

MICHAEL J. VROBEL, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:11-cv-00953) 

Martin F. McMahon argued the cause for the appellant. 

Peter C. Pfaffenroth, Assistant United States Attorney, 

argued the cause for the appellee. Ronald C. Machen, Jr., 

United States Attorney, and R. Craig Lawrence, Assistant 

United States Attorney, were on brief. 

Before: HENDERSON and BROWN, Circuit Judges, and 

GINSBURG, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge HENDERSON. 

 KAREN LECRAFT HENDERSON, Circuit Judge: Linda 

Jacobs (Jacobs), an employee of the United States General 
2 

Services Administration (GSA), sued her long-time 

supervisor, Michael Vrobel (Vrobel), in the District of 

Columbia Superior Court for defamation and interference 

with her attempts to secure alternative employment. Because 

Vrobel was then (and remains) a federal employee, Jacobs’s 

lawsuit was not a garden-variety tort suit. Instead, pursuant to 

the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 

(codified as amended in relevant part at 28 U.S.C. § 2679), 

the United States Attorney General certified that Vrobel’s 

conduct was within the scope of his employment, thus 

removing the case to federal district court and substituting the 

United States as the defendant. Concluding that Vrobel did in 

fact act within the scope of his employment, the district court 

dismissed the suit as jurisdictionally barred by the Federal 

Tort Claims Act (FTCA). Mem. Op., Jacobs v. Vrobel, No. 

11-cv-953 (D.D.C. Mar. 8, 2012). On appeal, Jacobs argues 

that Vrobel’s conduct was outside the scope of his 

employment. We disagree and therefore affirm the district 

court’s dismissal for lack of subject matter jurisdiction. 

I. 

Jacobs began working for GSA in June 1990 and Vrobel 

served as her supervisor from 1995 through 2010. Compl. 

¶¶ 4-5 (Joint Appendix (JA) 2). Jacobs originally worked in 

another position but in 1999 GSA promoted her to “a Contract 

Specialist position . . . as a result of a successful Equal 

Employment Opportunity complaint that she filed.” Compl. 

¶ 6 (JA 2). Jacobs alleges that, from 1992 to the present, she 

has received numerous awards and positive performance 

ratings from GSA. Compl. ¶¶ 7-8 (JA 2). Despite seeking 

other employment since September 1990, however, Jacobs 

has not received a job offer. Instead, she alleges, she “has 

been literally held prisoner at GSA . . . for the past 20 years.” 

Compl. ¶ 13 (JA 3). She believes that she has been unable to 

find a new job because Vrobel “defames [her] and criticizes 
3 

her work abilities when [a] potential employer calls for a 

reference.” Compl. ¶ 21 (JA 4). She alleges that “[o]n 

numerous occasions when she was told that she had [a] new 

job [for which she interviewed], the new job disappeared after 

the hiring agency contacted GSA and Plaintiff’s supervisor.” 

Compl. ¶ 20 (JA 4). 

On May 2, 2011, Jacobs filed a two-count complaint in 

the District of Columbia Superior Court against Vrobel for 

defamation and “malicious intentional interference with 

plaintiff’s alternative employment opportunities.”1

 Compl. 

¶¶ 12-32 (JA 3-5). Under the Westfall Act, however, if a 

plaintiff brings a tort suit against a federal employee in state 

court, the Attorney General may certify that “the defendant 

employee was acting within the scope of his office or 

employment at the time of the incident out of which the claim 

arose.” 28 U.S.C. § 2679(d)(1). Upon certification, the 

employee is dismissed from the action, the United States is 

substituted as the defendant, the claim is removed to federal 

district court and the claim becomes governed by the FTCA. 

Id. § 2679(d)(1)-(2). As the United States Supreme Court has 

explained, “the purpose of the Westfall Act [is] to shield 

covered employees not only from liability but from suit.” 

Osborn v. Haley, 549 U.S. 225, 248 (2007). 

 1

 The allegations in count two appear to refer to GSA, not 

Vrobel. Jacobs complains that “Defendant supervisors had no 

intention to see the Plaintiff depart from her position at GSA,” 

“they purposely lied to the potential employer,” “they were 

interfering with Plaintiff’s ability to change jobs” and “[t]hey knew 

that if she was given a bad reference that would put an end to the 

new potential employer’s interest.” Compl. ¶¶ 28-31 (JA 5) 

(emphases added). We assume this is a series of typographical 

errors, given that Jacobs did not name GSA as a defendant. 
4 

On May 23, 2011 the Attorney General through his 

delegate certified that Vrobel “was acting within the scope of 

his employment . . . at the time of the alleged incidents.” 

Certification, Jacobs v. Vrobel, No. 11-cv-953 (D.D.C. May 

23, 2011) (JA 14). The certification removed Jacobs’s suit to 

the United States District Court for the District of Columbia 

and substituted the United States as the defendant. The next 

day, the United States moved to dismiss Jacobs’s complaint 

for lack of subject matter jurisdiction and failure to state a 

claim, attaching an affidavit in which Vrobel declared that he 

acted within the scope of his employment at all relevant times 

and in all relevant actions. Mot. to Dismiss, Jacobs v. Vrobel, 

No. 11-cv-953 (D.D.C. May 24, 2011). On March 8, 2012, the 

court dismissed Jacobs’s complaint for lack of subject matter 

jurisdiction. Mem. Op. 10, Jacobs v. Vrobel, No. 11-cv-953 

(D.D.C. Mar. 8, 2012). Because Vrobel had acted in the scope 

of his employment, the court concluded, Jacobs’s only 

recourse was to proceed under the FTCA against the United 

States, id. at 8, and, because Jacobs’s claims were governed 

by the FTCA, it lacked subject matter jurisdiction for two 

independent reasons: first, Jacobs failed to exhaust 

administrative remedies under the FTCA and second, the 

United States had not waived its sovereign immunity from 

suit for the torts Jacobs alleged. Id. at 8-10. Jacobs timely 

appealed. 

II. 

 Jacobs argues that the district court erred in holding that 

Vrobel acted in the scope of his employment when he 

allegedly defamed Jacobs and interfered with her alternative 

employment opportunities. In addition, Jacobs complains that 

she should have been granted limited discovery on the scope 

of employment issue before dismissal. We review de novo the 

district court’s dismissal, Nat’l Air Traffic Controllers Ass’n 

v. Fed. Serv. Impasses Panel, 606 F.3d 780, 786 (D.C. Cir. 
5 

2010), including its conclusion that Vrobel was acting within 

the scope of his employment, Council on Am. Islamic 

Relations v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) 

(per curiam). In so doing, we assume that “all material factual 

allegations in the complaint” are true and accord the plaintiff 

“the benefit of all inferences that can be derived from the 

facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 

1139 (D.C. Cir. 2011) (quotation marks omitted). 

 In a Westfall Act case, we consider more than the 

allegations in the complaint to determine whether the 

defendant acted in the scope of his employment. See Osborn, 

549 U.S. at 249. The Attorney General’s certification that the 

defendant was so acting is prima facie evidence of that fact. 

Ballenger, 444 F.3d at 662; see also Wilson v. Libby, 535 F.3d 

697, 711 (D.C. Cir. 2008) (“The certification carries a 

rebuttable presumption that the employee has absolute 

immunity from the lawsuit and that the United States is to be 

substituted as the defendant.”). To rebut the certification, the 

plaintiff must allege, in either the complaint or a subsequent 

filing, specific facts “that, taken as true, would establish that 

the defendant[’s] actions exceeded the scope of [his] 

employment.” Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. 

Cir. 2003). If the plaintiff satisfies this burden, “he may, if 

necessary, attain ‘limited discovery’ to resolve any factual 

disputes over jurisdiction.” Wuterich v. Murtha, 562 F.3d 375, 

381 (D.C. Cir. 2009) (quoting Stokes, 327 F.3d at 1214, 

1216). In determining whether the plaintiff has alleged facts 

to rebut the certification, we heed the Supreme Court’s 

instruction: 

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.” A 

claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the 
6 

reasonable inference that the defendant is liable for 

the misconduct alleged. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We accept 

factual allegations as true but we do not do the same for legal 

conclusions—therefore, “[t]hreadbare recitals of the elements 

of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id.

 In determining whether an employee acted within the 

scope of his employment, we consider the substantive law of 

the jurisdiction where the employment relationship exists—

here, the law of the District of Columbia (District). Majano v. 

United States, 469 F.3d 138, 141 (D.C. Cir. 2006). Courts of 

the District analyze this issue via a test established by the 

Second Restatement of Agency, which provides: 

(1) Conduct of a servant is within the scope of 

employment if, but only if: 

(a) it is of the kind he is employed to perform; 

(b) it occurs substantially within the authorized 

time and space limits; [and] 

(c) it is actuated, at least in part, by a purpose to 

serve the master . . . . 

(2) 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 (1958) 

(RESTATEMENT); see Wilson, 535 F.3d at 711. The test is 

“objective” and is “based on all the facts and circumstances.” 

Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986). 
7 

Moreover, as we recently noted, the District has broadly 

interpreted the test: 

Many states and D.C. apply the scope-ofemployment test very expansively, in part because 

doing so usually allows an injured tort plaintiff a 

chance to recover from a deep-pocket employer 

rather than a judgment-proof employee. The scopeof-employment test often is akin to asking whether 

the defendant merely was on duty or on the job when 

committing the alleged tort. Because of the broad 

scope-of-employment standard in many states and 

D.C., and because the FTCA and the Westfall Act 

incorporate the relevant state’s test, tort claims 

against federal government employees often proceed 

against the Government itself under the FTCA rather 

than against the individual employees under state 

law. 

Harbury v. Hayden, 522 F.3d 413, 422 n.4 (D.C. Cir. 2008) 

(citation omitted). 

 Jacobs first argues that Vrobel’s conduct fails the first 

prong of the Restatement test because it is not “of the kind 

[Vrobel was] employed to perform.” RESTATEMENT

§ 228(1)(a). In determining whether Vrobel’s conduct 

satisfies this prong, District law requires that we focus on the 

type of act Vrobel took that allegedly gave rise to the tort, not 

the wrongful character of that act. See Ballenger, 444 F.3d at 

664 (“The proper inquiry in this case focuses on the 

underlying dispute or controversy, not on the nature of the 

tort, and is broad enough to embrace any intentional tort 

arising out of a dispute that was originally undertaken on the 

employer’s behalf.” (quotation marks omitted)). For example, 

in Ballenger, we held that a congressman acted within the 

scope of his employment when he allegedly defamed the 

plaintiff during a telephone call with the press because 
8 

“[s]peaking to the press during regular work hours in response 

to a reporter’s inquiry falls within the scope of a 

congressman’s authorized duties.” Id. (quotation marks 

omitted). In evaluating this prong of the Restatement, we 

explained, “[t]he appropriate question . . . is whether that 

telephone conversation—not the allegedly defamatory 

sentence—was the kind of conduct [the congressman] was 

employed to perform.” Id.; see also Rasul v. Myers, 512 F.3d 

644, 656-57 (D.C. Cir.) (“To be ‘of the kind’ of conduct an 

individual is employed to perform, the Restatement explains 

that the ‘conduct must be of the same general nature as that 

authorized, or incidental to the conduct authorized.’” (quoting 

RESTATEMENT § 229(1)), vacated on other grounds, 555 U.S. 

1083 (2008). 

 Vrobel’s conduct easily satisfies this prong. Jacobs’s 

theory of recovery in both counts of her complaint is that 

Jacobs (1) applied for employment outside GSA’s contracting 

division as well as outside GSA; (2) Vrobel answered 

inquiries from prospective employers about Jacobs; and (3) 

due to Vrobel’s negative response, the employers did not hire 

Jacobs. See Comp. ¶¶ 23, 29 (JA 4-5). The type of act that 

Vrobel allegedly took here—responding to a prospective 

employer’s request for a reference—is plainly “the kind of 

conduct [Vrobel] was employed to perform.” Ballenger, 444 

F.3d at 664. 

 Jacobs also contends that Vrobel’s conduct fails the third 

prong of the Restatement test because it was not “actuated, at 

least in part, by a purpose to serve the master.” RESTATEMENT

§ 228(1)(c). To satisfy this prong, the employee must have 

had an “intention to perform [the conduct in question] as a 

part of or incident to a service on account of which he [was] 

employed.” Schechter v. Merchants Home Delivery, Inc., 892 

A.2d 415, 428 (D.C. 2006) (emphasis added and quotation 

marks omitted). This requires only a “partial desire to serve 
9 

the [employer].” Ballenger, 444 F.3d at 665 (emphasis 

added). Again, we examine “the underlying dispute or 

controversy, not . . . the nature of the tort.” Johnson, 518 A.2d 

at 992. Further, the test “is broad enough to embrace any 

intentional tort arising out of a dispute that was originally 

undertaken on the employer’s behalf.” Id. (quotation marks 

omitted). Finally, because the focus of our analysis is on “the 

state of the servant’s mind[,] . . . external manifestations are 

important only as evidence.” Schechter, 892 A.2d at 428 

(quotation marks omitted). 

 Conclusory allegations aside, we cannot infer from 

Jacobs’s complaint that Vrobel did not intend, “at least in 

part, . . . to serve” GSA by fielding prospective employers’ 

requests for a reference and allegedly defaming Jacobs while 

doing so. Indeed, her allegations contradict her position. 

Jacobs alleges that Vrobel answered the reference calls in his 

role as her supervisor at GSA. See Compl. ¶ 20 (noting “the 

new job[s] disappeared after the [prospective employer] 

contacted GSA and Plaintiff’s supervisor” (emphasis added)); 

Compl. ¶ 23 (“the potential employer calls the GSA for a 

reference” (emphasis added)). Nor does Jacobs contend that 

responding to reference calls from prospective employers is 

not an act undertaken on GSA’s behalf. While Jacobs alleges 

that Vrobel defamed her during the calls, District law 

requires, as noted earlier, that we focus on the “underlying 

dispute or controversy” (the reference call), not “the nature of 

the tort” (the defamatory statement). Johnson, 518 A.2d at 

992. Responding to a reference call is an act plainly intended 

to benefit his employer and, accordingly, we conclude that 

Vrobel intended, at least in part, to serve GSA when he 

allegedly defamed Jacobs during the call. 

 Jacobs also alleges, apparently in an effort to show 

Vrobel’s state of mind, that he gave negative references to 

prospective employers because he “had no intention to see the 
10 

Plaintiff depart from her position at GSA.” Compl. ¶ 28 (JA 

5); see also Compl. ¶¶ 29-31 (JA 5). The allegation is not 

only conclusory, however, but also suggests that Vrobel’s 

negative reference was given in an effort to aid his employer 

by keeping Jacobs, who claims to be a top-flight employee, 

employed with GSA. 

 In addition, Jacobs’s case is distinguishable from the 

principal precedent on which Jacobs relies: Stokes v. Cross, 

327 F.3d 1210 (D.C. Cir. 2003), and Majano v. United States, 

469 F.3d 138 (D.C. Cir. 2006). In Stokes, the plaintiff alleged 

that his superiors intentionally injured his professional 

reputation by filing a false adverse incident report, destroying 

critical exculpatory evidence and threatening an employee in 

an attempt to force him to make a false statement. 327 F.3d at 

1212. After the Attorney General certified that the 

defendants’ actions fell within the scope of their employment, 

the district court dismissed the complaint, reasoning that 

Stokes had “given no evidence to suggest that [the Attorney 

General’s delegate was] not able to make the certification.” 

Id. (quotation marks omitted). We reversed because the 

district court erroneously required the plaintiff to show the 

delegate lacked authority to issue the certification; the district 

court should have decided whether the plaintiff had alleged 

sufficient facts to show the defendants acted outside the scope 

of their employment. Id. at 1214-15. We further held that, 

based on allegations of “destroying critical evidence, 

preparing and submitting false affidavits by use of threat and 

coercion, and engaging in other criminal acts,” the plaintiff 

had pleaded sufficient facts to support his allegation that the 

defendants acted for their own purpose to destroy the 

plaintiff’s reputation. Id. at 1216. 

 Here, in contrast, the district court did not give 

“conclusive weight to the [delegate’s] scope-of-employment 

certifications.” Id. Instead, it evaluated for itself whether, 
11 

based on Jacobs’s allegations, Vrobel had acted in the scope 

of his employment. Mem. Op. at 4, Jacobs v. Vrobel, No. 11-

cv-953 (D.D.C. Mar. 8, 2012) (“The government’s 

certification, however, is not conclusive.”). Moreover, unlike 

here, Stokes’s allegation of malice was supported by specific 

allegations of a false report, coercion and destruction of 

evidence. Stokes, 327 F.3d at 1212, 1216. 

 In Majano, a co-worker allegedly assaulted the plaintiff 

when the plaintiff attempted to prevent the co-worker from 

entering the employer’s building. 469 F.3d at 140. After 

shoving the plaintiff to obtain entry, the co-worker then 

injured her by grabbing and repeatedly yanking the plaintiff’s 

lanyard. Id. In reversing the district court’s grant of summary 

judgment to the defendant, we concluded, first, that the initial 

assault was within the scope of the co-worker’s employment 

because it was animated by a desire to serve the employer (by 

gaining entrance to the building). The subsequent assault, 

however, was “violent and unprovoked and took place after 

[the defendant] had walked approximately 30-feet down a 

hallway well inside the building” and was thus unrelated to 

the original provocation or any work-related function. Id. at 

142. 

 Jacobs’s suit is factually distinct from Majano. There, the 

defendant committed a violent tort unrelated to whatever 

business for her employer she was attempting to attend to by 

entering the building. Here, Jacobs merely alleges that Vrobel 

performed a legitimate work-related function—fielding 

employment reference calls—in an impermissible manner. 

Finally, we note that Jacobs’s complaint includes several 

allegations against Vrobel that have nothing to do with her 

claims. Specifically, Jacobs complains that Vrobel (1) gave 

her too much work; (2) removed files from her desk; (3) 

prohibited her from speaking with co-workers about workrelated problems; and (4) spread rumors about her. Compl. 
12 

¶ 10 (JA 2-3). But the basis of both counts of her complaint is 

that Vrobel allegedly harmed her by making negative 

statements about her to prospective employers. Whether 

Vrobel was acting outside the scope of his employment in 

taking the four actions alleged above is irrelevant because 

they do not relate to Jacobs’s claims. See Iqbal, 556 U.S. at 

668 (allegations of complaint “against defendants who are not 

before us” irrelevant in determining whether complaint 

survives motion to dismiss). Indeed, Jacobs characterizes the 

allegations as examples of a “hostile workplace 

environment”—plainly, not one of her causes of action. 

Compl. ¶ 10 (JA 2). 

For the foregoing reasons, we affirm the district court’s 

judgment of dismissal.2

So ordered.

 2

 Jacobs is not entitled to discovery because there are no 

factual issues raised by the complaint that must be resolved. See 

Stokes, 327 F.3d at 1216 (plaintiff entitled to discovery if she 

“alleged sufficient facts that, taken as true, would establish that the 

defendant[’s] actions exceeded the scope of [her] employment”).