Steele v. Meyer

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRETT STEELE,

Plaintiff,
Civil Action No. 12-1867 (BAH)
v.
Judge Beryl A. Howell
HERMAN MEYER, et al.,

Defendants.

MEMORANDUM OPINION

This common law tort action stems from an alleged altercation between the plaintiff,

Brett Steele, and the defendants, Herman Meyer (“Meyer”) and Craig Deare (“Deare”), all of

whom were, at the time of the alleged altercation on August 2, 2011, employed by the National

Defense University’s College of International Security Affairs (“CISA”). The case was removed

to this Court by the defendants, pursuant to 28 U.S.C. §§ 1442(a)(1), 1446 (2006) and the

Federal Employees Liability Reform and Tort Compensation Act of 1988, also known as the

Westfall Act, 28 U.S.C. § 2679(d)(2) (2006). Pending before the Court are the plaintiff’s Motion

to Remand due to the alleged invalidity of the Westfall Act certification and the defendants’

Motion to Dismiss, under Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter

jurisdiction. For the reasons explained below, the plaintiff’s Motion to Remand is DENIED and

the defendants’ Motion to Dismiss for lack of subject matter jurisdiction is GRANTED.

I. BACKGROUND

A. Factual History

The plaintiff began work as an associate professor at CISA in August of 2010. Compl. ¶

8, ECF No. 4-1. Over the following year, the plaintiff was told to modify his teaching style at

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least twice in response to requests from his superiors. Id. ¶¶ 10–11, 18. The plaintiff alleges that

during one meeting to address his teaching style and course content, he was verbally berated by

CISA’s Chancellor, Colonel Michael Bell (“Bell” or “the Chancellor”). Id. ¶ 17.

On August 2, 2011, the plaintiff was summoned to the Chancellor’s office for a meeting

at 11:00 a.m. Id. ¶ 21. Although the plaintiff denies that he was told the purpose of the meeting,

id., he had several months previously been advised by a superior that “he would be terminated,”

Id. ¶ 20. Present at that meeting were the Chancellor and both defendant Meyer, who served as

CSI’s Dean of Students, and defendant Deare, who served as CSI’s Acting Academic Dean. Id.

¶¶ 2, 3, 25; Herman Meyer Aff. (“Meyer Aff.”) ¶ 3, ECF No. 8-2; Craig Deare Aff. (“Deare

Aff.”) ¶ 3, ECF No. 8-3. The duties of both defendants include assisting the Chancellor with

personnel matters. Meyer Aff. ¶ 3; Deare Aff. ¶ 3.The meeting’s purpose was, in fact, to notify

the plaintiff about his immediate placement on administrative leave prior to his termination.

Meyer Aff. ¶ 3; Deare Aff. ¶ 3.

Due to previous “difficulties” with the plaintiff’s “interactions with faculty and students,”

arrangements were made before the meeting for personnel from security and the Military Police

“to be standing by for assistance if needed.” Meyer Aff. ¶ 5; Deare Aff. ¶ 3. The defendants

describe the plaintiff as “nervous” “pensive” and “unpredictable” during the meeting. Meyer Aff.

¶ 5; Deare Aff. ¶ 4. The complaint and the defendants’ declarations differ markedly in their

recounting of what happened at the meeting.

The plaintiff alleges that soon after the meeting started, the Chancellor began berating

him, prompting the plaintiff to stand up and “calmly . . . proceed to walk toward the closed

[office] door” to leave. Compl. ¶ 24. The plaintiff alleges that upon reaching the door, the

defendants grabbed him by the arms and shoulders and told him he “was not going anywhere.”

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Compl. ¶ 25. The plaintiff was nevertheless “eventually able to break free from their grasp,” but

when he “opened the door, he was met with a group of security officials and Military Police

Officers,” who escorted him to his office to collect his belongings and then off the premises.

Compl. ¶¶ 28-30.

By contrast to the plaintiff’s recounting, the defendants state that soon after the

Chancellor began advising the plaintiff about the terms of his placement on administrative leave,

the plaintiff “lunged at” the Chancellor across a table then rushed toward the door where

defendant Meyer was standing and “grabbed” defendant Meyer’s hands. Meyer Aff. ¶¶ 7–8.

Defendant Deare was not in the room at that time, having stepped out to check on the location of

security personnel. Meyer Aff. ¶¶ 8-9; Deare Aff. ¶ 4. When the plaintiff “pushed his way

through the door,” he was able to see the Military Police and “immediately became more

subdued and cooperative.” Meyer Aff. ¶ 10; Deare Aff. ¶ 8. The plaintiff was then escorted by

the Military Police and defendant Deare to his office where the plaintiff spent approximately one

hour packing and moving into the hallway approximately 27 boxes of his personal belongings

before being escorted out of the school building. Meyer Aff. ¶¶ 10–12; Deare Aff. ¶¶ 8–12; see

also Compl, ¶ 30 (“Dr. Steel removed his belongings from his office”). The personal belongings

were subsequently delivered to the plaintiff’s home. Deare Aff. ¶ 11.

The plaintiff alleges that “[s]oon after the August 2011 incident, Dr. Steele began to feel

pain in his right shoulder. Dr. Steele was later diagnosed with a torn rotator cuff.” Compl. ¶ 33.

B. Procedural History

The plaintiff filed the instant action in the Superior Court of the District of Columbia,

asserting four claims for damages based on false imprisonment, assault and battery, negligent

infliction of emotional distress, and intentional infliction of emotional distress. See Not. of

Removal Ex. A at 1, ECF No. 1-1. Pursuant to the Westfall Act, the defendants timely removed
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the action to this Court. See Not. of Removal at 2, ECF No 1. A certification that defendants

Meyer and Deare “were employees of the Government and were acting within the scope of their

employment at the [CISA] at the time of the allegations stated in the complaint” accompanied

the Notice of Removal. 1 Not. of Removal Ex. B, ECF No. 1-2.

Pending before the Court is the plaintiff’s Motion to Remand to the Superior Court on the

ground that the defendants “were acting as private individuals” and not within the scope of their

employment as federal employees at the time of the alleged altercation, thus rendering the

Westfall Act certification in this case “insufficient” and “invalid.” Pl.’s Mem. in Supp. Mot. to

Remand, ECF No. 5 at 6; Pl.’s Reply in Supp. of Pl.’s Mot. to Remand (“Pl.’s Remand Reply”),

ECF No. 10, at 1. The defendants oppose any remand and have moved to dismiss the plaintiff’s

claims, pursuant to Federal Rule of Civil Procedure 12(b)(1), since upon substitution of the

United States as the defendant in this action, the Court’s subject matter jurisdiction is limited by

the Federal Tort Claims Act (“FTCA”), under which the plaintiff’s claims are not cognizable.

See Def.’s Mem. Opp. Pl.’s Mot. to Remand & Supp. of Def.’s Mot. Dismiss (“Def.’s Mot.

Dismiss”) at 2, ECF No. 8-1.

II. LEGAL STANDARD

A. Westfall Act Review

The Supreme Court has succinctly summarized the operation of the Westfall Act, 28

U.S.C. § 2679(b)(1), which “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). This law “was explicitly designed to nullify the Supreme

Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988),” which held that federal employees

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The certification was made by Daniel F. Van Horn, Chief of the Civil Division, Office of the United States
Attorney for the District of Columbia.

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 were immune to suits for damages under state tort law “only if the employees' conduct in

question was within the scope of employment and discretionary in nature.” Kimbro v. Velten, 30

F.3d 1501, 1504 (D.C. Cir. 1994). The Westfall Act “return[ed] government employees to their

status before the Court's decision,” making such employees “absolutely immune to suits for

damages under state tort law so long as they were acting within the scope of their official duties.”

Id.

Thus, “when a Federal employee is sued for wrongful or negligent conduct, the Act

empowers the Attorney General to 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.” Osborn, 549 U.S.

at 229–30 (internal quotation marks omitted). Then, “[u]pon the Attorney General’s certification,

the employee is dismissed from the action, and the United States is substituted as defendant in

place of the employee.” Id. at 230. The case “is thereafter governed by the Federal Tort Claims

Act (FTCA), 60 Stat. 842.” Id.

In Osborn, the Supreme Court held that “once certification and removal are effected,

exclusive competence to adjudicate the case resides in the federal court, and the court may not

remand the suit to the state court.” Id. at 231 (emphasis added). The statutory language expressly

dictates this result, stating that “[i]f the action commenced in state court, the case is to be removed

to a federal district court, and the certification remains “conclusiv[e] . . . for purposes of removal.”

28 U.S.C. § 2679(d)(2); see also Jacobs v. Vrobel, No. 12-5107, 2013 WL 3835832, at *1 (D.C.

Cir. July 26, 2013) (noting certification automatically removes action to Federal district court for

further proceedings). This ensures that resolution of issues regarding whether a federal employee

was acting within the scope of his or her employment are made in federal court. See Kimbro, 30

F.3d at 1506 (“Congress obviously meant the Attorney General to have the ability to ensure

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federal judicial adjudication over the issue of scope of employment of federal employees, and

therefore, perhaps, even some measure of uniformity—at least as to the nature of federal

employment patterns and scope of federal employment—even though various state tort laws were

applied.”).

B. Motion to Dismiss Under 12(b)(1)

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, Federal courts

are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116,

120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the

constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by

Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of

Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case,

the court must dismiss it. McManus v. District of Columbia, 530 F. Supp. 2d 46, 62 (D.D.C.

2007).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the

plaintiff must establish the court’s jurisdiction over the subject matter by a preponderance of the

evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Bolden-Bey v. U.S.

Parole Comm’n, 731 F. Supp. 2d 11, 13 (D.D.C. 2010) (“On a motion to dismiss for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of

establishing by a preponderance of the evidence that the court has subject matter jurisdiction”).

When considering a motion under Rule 12(b)(1), the court must accept as true all uncontroverted

material factual allegations contained in the complaint and “construe the complaint liberally,

granting plaintiff the benefit of all inferences that can be derived from the facts alleged and upon
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such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011) (internal citations and quotation marks omitted). The court need not accept

inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged

in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002). In evaluating subject-matter jurisdiction, the court, when necessary, may

look beyond the complaint to “undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert, 974

F.2d at 197; see also Alliance for Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).

III. DISCUSSION

A. The Plaintiff’s Motion for Remand

The plaintiff’s only argument for remand is that the Attorney General’s

designee’s certification is invalid because the defendants were not acting within the scope

of their employment. See Pl.’s Remand Reply at 5–6. This argument is unavailing since

the Court does not have the discretion to remand the matter when, as here, the Attorney

General has provided a clear and unequivocal certification that the defendants are federal

employees, who were acting within the scope of their employment. See Osborn, 549

U.S. at 241. Indeed, as the Westfall Act makes clear, the Attorney General’s certification

shall “conclusively establish scope of office or employment for purposes of removal.” 28

U.S.C. 2679(d)(2) (emphasis added).

The plaintiff’s bare assertion that the federal employees were acting in their

individual capacities, rather than in the exercise of their federal job responsibilities, is not

sufficient to defeat the Attorney General’s certification and prompt a remand. See Brown

v. Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991) (holding “conclusory allegations of . .

. personal motive” insufficient to defeat Attorney General’s certification). Moreover,
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even when federal defendants, who allegedly engaged in tortious misconduct, deny that

the misconduct ever occurred, the Westfall Act commands that the district court retain

jurisdiction over the removed case. See 28 U.S.C. 2679(d)(2); see also Osborn, 549 U.S.

at 244 (federal court jurisdiction retained when government denies occurrence of alleged

misconduct or court concludes employee acted outside scope of employment).

Thus, even if the plaintiff were correct that defendants were acting outside the

scope of their employment and were able to rebut the Westfall certification, this Court

would nonetheless retain jurisdiction. In that event, the certification does not "preclude a

district court from resubstituting the federal official as defendant for purposes of trial if

the court determines, post removal, that the Attorney General's scope-of-employment

certification was incorrect." Id. at 242. As the Supreme Court explained,

“[c]onsiderations of judicial economy, convenience, and fairness to litigants make it

reasonable and proper for a federal court to proceed to final judgment, once it has

invested time and resources to resolve the pivotal scope of employment contest.” Id. at

245. Therefore, the plaintiff’s Motion to Remand is denied.

B. The Defendants’ Motion to Dismiss

The plaintiff concedes that if the United States were substituted as the defendant in this

action, the government’s waiver of sovereign immunity is bound by the FTCA–which would bar

his claims. Pl.’s Opp. Mot. Dismiss at 6, ECF No. 11 (“Plaintiff cannot dispute that, if

substituted, the United States would be relieved of liability under the FTCA for the torts asserted

and under relevant case law.”). Thus, the viability of any claims by the plaintiff against the two

defendants in their individual capacities hinges upon his challenge to the validity of the Attorney

General’s designee’s certification. “The Supreme Court has held that the government's scope of

employment determination under the Westfall Act is judicially reviewable regarding the
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substitution of the government.” Stokes v. Cross, 327 F.3d 1210, 1213 (D.C. Cir. 2003) (citing

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995)); see also Haddon v. United States,

68 F.3d 1420, 1423 (D.C. Cir. 1995) abrogated on other grounds by Osborn, 549 U.S. 225

(2007) (the certification “is not conclusive regarding substitution of the federal government.

Instead, the federal court may determine independently whether the employee acted within the

scope of employment and, therefore, whether to substitute the federal government as the proper

defendant.”).

The plaintiff seeks to rebut the Westfall certification – and avoid substitution of the

United States as the defendant – by contending, first, that the certification is facially deficient,

and, secondly, that the “Defendants cannot be credibly or logically be found to have been acting

within the scope of their duties when the [sic] injured Dr. Steele on August 2, 2011.” Pl.’s Opp.

Mot. Dismiss at 6. The Court will address each argument in turn.

1. The Certification Is Facially Valid

First, as noted, the plaintiff deems the Attorney General designee’s Westfall certification

“insufficient” because “it does not determine the scope of the Defendants’ respective

employment . . . and does not provide facts to support the assertion.” Pl.’s Remand Reply at 5.

The plaintiff fails to grapple with the clear law that a Westfall Act certification “is prima facie

evidence” that the defendant was acting within the scope of his employment, and that the burden

rests on the plaintiff to rebut that evidence. Jacobs, 2013 WL 3835832, at *2; Stokes, 327 F.3d

at 1214 (“A plaintiff challenging the government’s scope-of-employment certification bears the

burden of coming forward with specific facts rebutting the certification.”); Wuterich v. Murtha,

562 F.3d 375, 381 (D.C. Cir. 2009); Wilson v. Libby, 535 F.3d 697, 711 (D.C. Cir. 2008);

Harbury v. Hayden, 522 F.3d 413, 417 (D.C. Cir. 2008) (“In many cases, the Attorney General’s

certification begins and ends the scope-of-employment analysis.”); Council on Am. Islamic
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Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (noting the plaintiff “bears the

burden” of rebutting the certification with specific facts). Indeed, the Supreme Court has

observed that it “is customary” for “the certification [to] state[] no reasons for the

determination.” Osborn, 549 U.S. at 233 (considering certification virtually identical to the

instant certification).

Therefore, because the government is under no obligation to provide more information in

its certification than it has already provided, the plaintiff’s challenge that the certification is

“insufficient” must fail.

2. The Plaintiff Has Not Rebutted the Certification

As stated above, the burden of challenging the correctness of a Westfall Act certification

rests with the plaintiff. “[M]ere conclusory statements do not suffice” to rebut a certification.

Jacobs, 2013 WL 3835832, at *3. Rather than “rely on mere conclusory allegations and

speculation, [the plaintiff] must submit persuasive evidence—specific evidence or a forecast of

specific evidence—that contradicts the certification.” Estate of Callaham ex rel. Foster v.

United States, No. 3:12-cv-579, 2012 WL 1835366, at *2 (D.S.C. May 21, 2012). It is “[o]nly if

the district court concludes that there is a genuine question of fact material to the scope-of-

employment issue should the federal employee be burdened with discovery and an evidentiary

hearing.” Id. (quoting Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1155

(4th Cir. 1997)). In evaluating the plaintiff’s “specific evidence” here, the Court has only the

allegations in the complaint, which it will accept as true for the purposes of his challenge to the

scope of employment certification. See U-Haul Int’l, Inc. v. Estate of Albright, 626 F.3d 498,

501 (9th Cir. 2010) (district court did not abuse discretion in denying plaintiff opportunity to

present evidence that federal employee was not acting within scope of his employment since the

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court upheld the Westfall certification “while assuming all of [plaintiff’s] allegations to be

true.”).

When a plaintiff challenges the Westfall certification that the federal employee was

acting within the scope of his or her employment, the courts apply the respondeat superior law

of the state where the alleged tort occurred. See Jacobs, 2013 WL 3835832, at *3; Stokes, 327

F.3d at 1214. Here, the governing law is that of the District of Columbia. Under District of

Columbia law, an employee’s scope of employment is determined by applying the test

established in the Restatement (Second) of Agency. See Jacobs, 2013 WL 3835832, at *3.

Under this test, the employee’s conduct falls within the scope of his employment when it (1) “is

of the kind [the employee] is employed to perform;” (2) “occurs substantially within the

authorized time and space limits [of the employment];” (3) “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 unexpectable by the master.” Wilson, 535 F.3d at 711. The District of

Columbia interprets this test broadly, such that the D.C. Circuit has characterized the test as

“akin to asking whether the defendant merely was on duty or on the job when committing the

alleged tort.” Harbury 522 F.3d at 422 n.4. Indeed, local District of Columbia courts have

found “sexual harassment, a shooting, armed assault, and rape” within the scope of a defendant’s

employment. Id. at 422 (collecting cases).

The parties agree that the alleged tortious actions took place during the work day, in the

CISA Chancellor’s office. See Compl. ¶ 21; Def.’s Mot. Dismiss at 11. Thus, the second prong

of the District of Columbia’s test is met because the conduct occurred “substantially within the

authorized time and space limits” of the employment. Wilson, 535 F.3d at 711. The dispute

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centers on whether the other three prongs of the test are satisfied, namely: the kind of conduct,

the intent to serve the employer, and the expectability of the use of force.

a. The Defendants Were Engaged In Conduct Incidental To That Which
They Were Employed To Perform.

As to the first prong, the plaintiff alleges that the defendants’ conduct was “neither

foreseeable nor in the general nature of their duties and responsibilities.” Pl.’s Remand Reply at

7. In doing so, the plaintiff contends that because the defendants were “not hired for the purpose

of physically restraining Plaintiff,” their alleged contact with him must be outside the scope of

their employment. This contention misconstrues District of Columbia law.

“To qualify as conduct of the kind he was employed to perform the defendant’s actions

must have either been of the same general nature as that authorized or incidental to the conduct

authorized.” Council on Am. Islamic Relations, 444 F.3d at 664 (quoting Haddon v. United

States, 68 F.3d at 1424 (D.C. Cir. 1995)) (emphasis added). Conduct is “incidental” if it is

“foreseeable” and it is “foreseeable” if it is a “direct outgrowth of the employee’s instructions or

job assignment.” See Haddon, 68 F.3d at 1424.

The D.C. Circuit’s recent decision in Jacobs, is instructive on this point. In Jacobs, the

plaintiff accused her supervisor at the General Services Administration of defamation and

interfering with the plaintiff’s ability to secure other work. Jacobs, 2013 WL 3835832, at *1.

The Attorney General’s designee certified the defendant was acting within the scope of his

employment, the case was removed to the district court, and the plaintiff’s claims were dismissed

under the FTCA. Id. at *2. On appeal, the plaintiff challenged the district court’s scope of

employment determination regarding the first and third prongs of the District of Columbia’s

scope of employment test. Id. at *3–4. In considering the first prong, the Jacobs court noted that

it must “focus on the type of act . . . that allegedly gave rise to the tort, not the wrongful

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character of the act.” Id. at *3. The court found that whatever was said in telephone calls

between the plaintiff’s supervisors and plaintiff’s prospective employers was “of the kind of

conduct” the plaintiff’s supervisor was employed to perform, i.e., responding to a prospective

employer’s request for a reference, regardless of the character of those statements. Id., at *4.

Thus, even wrongful conduct, foreseeably performed in conjunction with specified job duties, is

“incidental” to the conduct the employee is hired to perform under District of Columbia law.

The defendants state their duties included “assisting the Chancellor with personnel

matters” and that they were asked to attend the August 2011 meeting with the plaintiff by the

Chancellor. Meyer Aff. ¶ 3; Deare Aff. ¶ 3. Thus, the defendants were in the Chancellor’s

office as “a direct outgrowth of [their] instructions.” See Haddon, 68 F.3d at 1424. Any actions

taken by the defendants while in the Chancellor’s office for the meeting with the plaintiff were

similarly “direct outgrowths” of their instructions to be present for the meeting. Just as in

Jacobs, the wrongful nature of the conduct alleged here is irrelevant to the determination that the

act was “incidental” to the conduct the defendants were hired to perform; the only relevant

inquiry is whether the conduct was foreseeable.

The plaintiff has offered no facts to controvert the fact that the defendants were requested

to be present in the August 2011 meeting; that it was part of the defendants’ job duties to assist

the Chancellor in personnel matters; and that they were asked to be in the meeting as part of their

job duties. Thus, taking all of the allegations in the complaint as true and in light of the failure of

the plaintiff to present any “persuasive evidence” regarding the defendants’ job duties, the Court

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finds the conduct alleged occurred, at the very least, incidentally to the kind of conduct the

defendants were employed to perform. 2

b. The Defendants Acted At Least Partially Out Of A Desire To Serve
Their Employer.

As to the third prong—whether the actions complained of were undertaken with the

intent to serve the employer—the plaintiff offers nothing but conclusory statements that the

defendants “simply did not like the fact that Dr. Steele decided to end the meeting.” Pl.’s

Remand Reply at 11. To meet the third prong of the District’s test, it is necessary to show the

employee’s act was “solely for the servant’s personal benefit” and “not done for the employer at

all.” Schecter v. Merchs. Home Delivery, Inc., 892 A.2d 415, 428 (D.C. 2006). Again, Jacobs is

illustrative. In Jacobs, the plaintiff asserted that her GSA supervisor gave her negative

references to potential employers and was therefore not acting to serve the GSA. Jacobs, 2013

WL 3835832, at *4. Noting the complaint specifically alleged that the supervisor was

responding to such calls on his employer’s behalf, the court found that the supervisor was

motivated, at least in part, to serve the employer. Id. The relevant inquiry for the third prong is

whether the defendant was motivated at least in part by a desire to serve his employer. Id.;

Schecter, 892 A.2d at 428. Thus, even if the defendants did, as the plaintiff alleges, have an

ulterior motive to prevent the plaintiff from leaving the meeting, the plaintiff must offer evidence

that the defendants did so without any desire to serve their employer simultaneously.

The plaintiff has offered no such evidence. There are no allegations of any former

disputes or conflicts between the defendants and the plaintiff which might have given the

defendants the motive to assault the plaintiff. Taking every allegation in the complaint as true,

2
The plaintiff references “testimony that Colonel Bell provided during the investigation of an administrative
complaint filed by Dr. Steele,” Pl.’s Remand Reply at 9, but no such testimony has been filed for consideration with
this Court and, in any event, based on the general description provided, such evidence would make no difference.

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the statements attributed to the defendants likewise belie the plaintiff’s assertion that the

defendants were not acting, at least in part, to serve their employer: “Dean Meyer and Deane

Deare . . . told [the plaintiff] the meeting was not over and that he ‘was not going anywhere.’”

Compl. ¶ 25 (emphasis added). Contrary to the plaintiff’s conclusory assertion that the

defendants “simply did not like the fact that Dr. Steele decided to end the meeting,” Pl.’s

Remand Reply at 11, telling the plaintiff that they were keeping him in the meeting until the

meeting’s conclusion indicates the defendants were acting at least partially out of intent to serve

the employer’s purpose. Thus, the plaintiff has failed to present persuasive evidence challenging

the third prong of the District of Columbia’s scope of employment test.

c. The Defendants’ Use Of Force Was Not “Unexpectable”

Finally, as to the fourth prong, the plaintiff again offers merely conclusory statements

that “it is not credible to accept that [the defendants’] employer could foresee that the Defendants

would deviate from the function of their duties and physically prevent Dr. Steele from leaving

the meeting.” Pl.’s Remand Reply at 12. On the contrary, both parties agree that the defendants

and the Chancellor were so concerned about the plaintiff’s reaction to this meeting that they

required security personnel to be present nearby. Meyer Aff. ¶ 3; Deare Aff. ¶ 3; Compl. ¶ 28.

Given the necessity of having “armed Military Police Officers,” Compl. ¶ 29, near the

meeting, it cannot be credibly asserted that the use of force in conjunction with this meeting was

“unexpectable.” The presence of the officers instead points to the conclusion that the possible

need for the use of force was anticipated. Consequently, the fourth prong is amply met.

Therefore, the plaintiff has failed to meet his burden of putting forth sufficient facts to allege that

the defendants were acting outside the scope of their employment. 3

3
Alternatively, the plaintiff asks for “the opportunity to obtain discovery and an evidentiary hearing on the issue.”
Pl.’s Remand Reply 15. Since the plaintiff has failed to raise a single material fact in dispute that would lead this

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 C. The Plaintiff’s Claims Are Not Cognizable Under The FTCA And Must
Therefore Be Dismissed

“Under the FTCA, certification by the Attorney General 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 transforms an action against an individual federal employee into one against the

United States.” Hui v. Castaneda, 559 U.S. 799, 810 (2010) (internal quotations omitted). The

United States will be substituted for the defendants, pursuant to 28 U.S.C. § 2679(d)(2), and the

FTCA is the plaintiff’s sole route for recovery. 4 The First and Second count in the plaintiff’s

complaint assert claims for false imprisonment and assault and battery, Compl. ¶ 35–50, while

the infliction of emotional distress claims in counts Three and Four “arose out of” the false

imprisonment count. See Compl. ¶ 53 (“Dean Meyer and Dean Deare acted with such extreme

and outrageous conduct when they falsely imprisoned Dr. Steele”) (emphasis added); ¶ 58

(same).

The FTCA only grants federal courts jurisdiction over claims against the sovereign

subject to certain exceptions, including those embodied in 28 U.S.C. § 2680. Sloan v. U.S. Dep’t

of Housing and Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001). As a sovereign, the United

States has not waived liability for the torts of false imprisonment, assault and battery, or any

claims arising out of those torts. See 28 U.S.C. § 2680(h) (FTCA “shall not apply to… [a]ny

claim arising out of assault, battery, false imprisonment”); see also Ford v. Mitchell, 890 F.

Supp. 2d 24, 34–35 (D.D.C. 2012) (dismissing false arrest and false imprisonment claims as not

cognizable under the FTCA); Banks v. Harrison, 864 F. Supp. 2d 142, 147-148 (D.D.C. 2012)

Court to believe the defendants were acting outside of the broad scope of employment under District of Columbia
law, the plaintiff’s request is denied.
4
The defendants also argue the plaintiff failed to exhaust his administrative remedies, as required under 28 U.S.C. §
2675(a). Def.’s Mot. Dismiss at 17. As this case will be dismissed under Federal Rule of Civil Procedure 12(b)(1),
it is unnecessary to address this argument.

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(dismissing assault claims as not cognizable under FTCA); Tolson v. Stanton, 844 F. Supp. 2d

53, 57 (D.D.C. 2012) (FTCA “expressly excludes claims ‘arising out of assault and battery’”);

Koch v. United States, 209 F. Supp. 2d 89, 94 (D.D.C. 2002) (dismissing plaintiff’s assault and

intentional infliction of emotion distress claims as not cognizable under the FTCA); Watkins v.

Holt, No. 05-1565, 2006 WL 2331090, at *1 (D.D.C. Aug. 10, 2006) (“By its terms, the FTCA

does not apply to any claim arising out of . . . false imprisonment.”) (internal quotation marks

omitted). 5 Thus, as the plaintiff concedes, he cannot recover on his claims of false imprisonment

and assault and battery, or for his related claims of negligent or intentional infliction of

emotional distress arising out of those torts, since they are all expressly excluded from allowable

tort claims under the FTCA. See Pl.’s Opp. Mot. Dismiss at 6 (“Plaintiff cannot dispute that, if

substituted, the United States would be relieved of liability under the FTCA for the torts

asserted.”). Therefore, these claims must be dismissed pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction.

IV. CONCLUSION

For the reasons explained above, the plaintiff’s Motion for Remand is DENIED.

Pursuant to 28 U.S.C. § 2679(d)(2), the United States shall be substituted for the federal

employee defendants, who were certified by the Attorney General’s designee to be “acting

within the scope of their employment . . . at the time of the allegations stated in the complaint.”

Not. of Removal Ex. B. As explained above, under the FTCA, 28 U.S.C. § 1346(b)(1) and the

exceptions thereto, including those found in 28 U.S.C. 2680(h), the Court lacks subject matter

5
The “arising out of assault” exception to the FTCA does not apply “to acts or omissions of investigative or law
enforcement officers of the United States Government.” See 28 U.S.C. 2680(h) (2006). The plaintiff nowhere
contends that this proviso on the “arising out of assault” exception might apply in the instant case and could not do
so because defendants Meyer and Deare do not appear to be law enforcement officers within the definition of the
FTCA and, indeed, had arranged for law enforcement officers to be present at the meeting to fulfill that function as
necessary. See Meyer Aff. ¶ 5; Deare Aff. ¶ 3.

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jurisdiction to hear the plaintiff’s claims. Therefore, the defendants’ Motion to Dismiss under

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction is GRANTED.

An appropriate order accompanies this Memorandum Opinion.

Date: August 29, 2013

Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District Court for the
District of Columbia, ou=District Court Judge,
email=howell_chambers@dcd.uscourts.gov,
c=US
_______________________________
Date: 2013.08.29 09:43:41 -04'00'

BERYL A. HOWELL
United States District Judge

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