UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELIZABETH AVILES-WYNKOOP,
Plaintiff,
v. Civil Action No. 13-1240 (JDB)
KEIA NEAL et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff, an employee at the Department of Housing and Urban Development (“HUD”),
seeks a temporary restraining order (“TRO”) and a preliminary injunction against her supervisors
at HUD. Originally, plaintiff filed a pro se complaint, a request for a temporary restraining order,
and a request for a preliminary injunction in D.C. Superior Court on August 6, 2013. The Chief
of the Civil Division, Office of the United States Attorney for the District of Columbia, filed a
Westfall certification under 28 U.S.C. § 2769(d), conclusively affirming that the defendants
were employees of the government and were acting within the scope of their employment at the
time of plaintiff’s allegations. As a result, defendants removed the case to this Court pursuant to
28 U.S.C. § 1442(a)(1) & 1446 and 28 U.S.C. § 2679(d)(2). Also as a result of the Westfall
certification, and pursuant to 28 U.S.C. § 2679(d)(2), the United States of America will be
substituted for defendants as the defendant in this case.
Defendants argue in their response to plaintiff’s request for a TRO that this Court lacks
subject-matter jurisdiction over plaintiff’s claims. Def.’s Opp’n 5-13. Federal courts are courts of
limited jurisdiction and it is presumed that “a cause lies outside this limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors
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Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a court of
limited jurisdiction, we begin, and end, with an examination of our jurisdiction”). Accordingly, a
federal court has a duty to notice a failure of subject-matter jurisdiction on its own motion at any
time during the proceedings. See Potomac Passengers Ass’n v. Chesapeake & O. Ry., 520 F.2d
91 (D.C. Cir. 1975). Defendants argue that the Court lacks subject-matter jurisdiction over
plaintiff’s claims—against federal employees in their official capacities—because “[t]he doctrine
of sovereign immunity insulates the United States from suit except on such exact terms as
Congress authorizes.” Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1, 3 (D.D.C. 1998)
(citing Honda v. Clark, 386 U.S. 484, 501 (1967)). “Sovereign immunity is jurisdictional in
nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Hence, whether the Court has subject-matter
jurisdiction depends on the nature of plaintiff’s claims.
1. Plaintiff has asserted tort claims and an employment discrimination claim
Because of the sparse nature of plaintiff’s complaint and request for a TRO, it is difficult
to discern the exact nature of the claims that she is asserting. But pro se complaints are to be
“liberally construed.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Construing her complaint
and request for TRO broadly, plaintiff appears to assert tort claims and an employment
discrimination claim. Compl. 1. In her complaint, plaintiff claims that the defendants, her first
and second line supervisors at HUD, “verbally admonished [her] in front of other staff members
[and] slandered [her] name,” which she alleges constitutes a “Hostile/Bullying Work
Environment.” Id. She also alleges that “[e]veryday [she is] enduring verbal abuse,” and that she
is “scared that either supervisor will take the Hostile/Bullying Work Environment to the
physical.” Id. And on the civil cover sheet filed with her complaint, she indicated that the nature
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of the suit was “Harassment,” located under “Personal Torts.” These allegations fairly may be
construed as claims for defamation and assault.
In her request for a TRO, she alleges that she has filed “30 plus grievances to show that
[her] two supervisors are at fault, as well as filed an EEO case, as well as a Workman’s Comp
case, [and] an OSHA case to protect [her] from bodily harm from both [of her] supervisors.”
Pl.’s Mot. for TRO (“TRO Mot.”) 1. And she alleges that she is “under Doctor’s care for [her]
anxiety/stress due to [her] hostile/bullying work environment.” Id. On the civil cover sheet filed
with her request for a TRO, she indicated that the nature of the suit was “Employment
Discrimination.” Title VII of the Civil Rights Act of 1964 may provide a remedy for harassment
claims, including claims premised upon the existence of a hostile work environment. See Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Although she never specifically mentions Title VII,
plaintiff’s allegations of a “Hostile/Bullying Work Environment,” coupled with her indications
that her suit was for “Employment Discrimination” and “Harassment,” fairly may be construed
as a Title VII hostile work environment claim. Accordingly, the Court will proceed as if plaintiff
asserted tort claims and an employment discrimination claim.
2. The Court may lack jurisdiction over plaintiff’s tort claims
To the extent plaintiff asserts tort claims against defendants, sovereign immunity may
shield the defendants from those claims. “The Federal Employees Liability Reform and Tort
Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees
absolute immunity from common-law tort claims arising out of acts they undertake in the course
of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007); 28 U.S.C. § 2679(b). The
individual defendants here are both federal employees. Once the Attorney General—or his
authorized designee—certifies that a federal employee was acting within the scope of his or her
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employment at the time of the conduct giving rise to the claim, the “employee[s] are dismissed
from the action, and the United States is substituted as defendant in place of the employee[s].”
Osborn, 549 U.S. at 230. Thereafter, the claims are governed by the Federal Tort Claims Act
(“FTCA”). Id. Here, the Chief of the Civil Division, Office of the United States Attorney for the
District of Columbia, filed such a certification, affirming that both defendants were employees of
the government and were acting within the scope of their employment at the time of the
plaintiff’s allegations. See Def.’s Opp’n Ex. 2. Thus, plaintiff’s tort claims against the individual
defendants must be dismissed, the United States will be substituted as the only remaining
defendant, see Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995), and plaintiff’s tort
claims will be governed by the FTCA.
The U.S. Attorney’s certification that the defendants were acting within the scope of their
employment is conclusive only for the purposes of removal, and not substitution: plaintiff may
present the Court with her objections to that certification and thereby resubstitute the individual
defendants. See id. at 437. It should be noted, however, that the conduct of which she complains
appears, at first blush, to be conduct usually undertaken within the scope of employment. She
alleges that she was verbally admonished in front of other staff members and that she is enduring
verbal abuse from her superiors. Compl. 1. Nevertheless, she may challenge the certification. If
she does so successfully, the case will still “aris[e] under” federal law, as that term is used in
Article III, and the Court would retain subject-matter jurisdiction as to her common law tort
claims against the resubstituted individual defendants, subject to the Court’s discretion. See
Osborn, 549 U.S. at 244-45; 28 U.S.C. § 1367 (“Supplemental jurisdiction”).
If plaintiff does not successfully challenge the U.S. Attorney’s certification, her tort
claims against the United States must be dismissed because she herself is a federal employee.
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The Federal Employees Compensation Act (“FECA”), 5 U.S.C. § 8101, et seq., precludes civil
actions by federal employees seeking tort recovery for injuries sustained during the course of
their employment. See id. § 8116(c) (prohibiting “actions against the United States by an
“employee, his legal representative, spouse, dependents, next of kin, [or] any other person
otherwise entitled to recover damages from the United States . . . because of the [employee’s]
injury or death.”). FECA “was designed to protect the Government from suits under statutes,
such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign
immunity.” Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194 (1983). Accordingly,
FECA will bar plaintiff’s tort claims against the United States if the U.S. Attorney’s certification
stands.
Consequently, plaintiff will be given an opportunity to challenge the U.S. Attorney’s
certification that the defendants were acting within the scope of their employment. If she elects
not to challenge it, or if she unsuccessfully challenges it, the Court will order that her tort claims
be dismissed as barred by FECA.
3. The Court lacks jurisdiction over plaintiff’s employment discrimination
claim
Defendants also argue that, under 42 U.S.C. § 2000e-16(c), the proper defendant is the
current HUD Secretary. See Def.’s Opp’n. 14-15. Congress has conditionally waived the
sovereign immunity of the United States under § 2000e-16, which extends the protection of Title
VII to federal employees. One condition of this waiver is that the “head of the department,
agency, or unit, as appropriate, shall be the defendant.” Id. § 2000e-16. As another court in this
district has noted, “[t]his language means what it says.” Nichols v. Agency for Int’l Dev., 18 F.
Supp. 2d 1, 3 (D.D.C. 1998). Here, plaintiff has not sued an agency head but instead has sued her
two supervisors at HUD. Thus, because Congress has not waived the United States’ sovereign
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immunity in these circumstances, the Court must dismiss plaintiff’s employment discrimination
claim for lack of subject-matter jurisdiction. See id. at 3. Of course, plaintiff may cure this
technical jurisdictional defect by amending her complaint to name the proper defendant.
Another possible basis for finding a waiver of sovereign immunity—and thus
jurisdiction—exists: plaintiff seeks exclusively injunctive relief. See Compl. 1; TRO Mot. 1. The
Administrative Procedure Act (“APA”) operates as a general waiver of the United States’
sovereign immunity from suits seeking exclusively injunctive relief. But even had plaintiff
invoked the APA, the Court would still lack subject-matter jurisdiction over her employment
discrimination claims. This is because the APA “excludes from its waiver of sovereign immunity
. . . claims seeking relief expressly or impliedly forbidden by another statute.” Transohio Savings
Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 607 (D.C. Cir. 1992); see also 5
U.S.C. § 704. The Supreme Court has held that Title VII “provides the exclusive judicial remedy
for claims of discrimination in federal employment.” Brown v. General Servs. Admin., 425 U.S.
820, 835 (1976). Because plaintiff is “precluded from bringing suit under other federal anti-
discrimination statutes that apply more generally,” McKenna v. Weinberger, 729 F.2d 783, 791
(D.C. Cir. 1984), § 2000e-16 forbids injunctive relief except on its own terms. Hence, the APA
does not waive sovereign immunity for her employment discrimination claim, and the Court
lacks subject-matter jurisdiction over the APA claim.
4. Plaintiff has not met the requirements for the issuance of a temporary
restraining order
The Court does not necessarily lack subject-matter jurisdiction over plaintiff’s tort claims
because she has not had an opportunity to challenge the U.S. Attorney’s Westfall certification. In
addition, plaintiff easily may amend her complaint in an attempt to cure the jurisdictional defect
in her employment discrimination claim—even if defendants’ looming motion to dismiss on
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several other grounds suggests that amendment would be futile. Having cleared the jurisdictional
hurdle—for now—the Court will assess plaintiff’s request for a TRO. The standard for issuance
of the “extraordinary and drastic remedy” of a temporary restraining order or preliminary
injunction is by now well-established. Munaf v. Geren, 553 U.S. 674, 689 (2007). To prevail, the
moving party must demonstrate: (1) a substantial likelihood of success on the merits; (2) that the
moving party would suffer irreparable injury if the injunction were not granted; (3) that an
injunction would not substantially injure other interested parties; and (4) that the public interest
would be furthered by the injunction. See Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290, 297 (D.C. Cir. 2006) (citing Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.
Cir. 1998)); see also Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.”).
“If the movant makes an unusually strong showing on one of the factors, then it does not
necessarily have to make as strong a showing on another factor.” Davis v. Pension Ben.
Guaranty Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (citing WMATC v. Holiday Tours,
559 F.2d 841, 843 (D.C. Cir. 1977)); see also Cuomo v. U.S. Nuclear Regulatory Comm’n, 772
F.2d 972, 974 (D.C. Cir. 1985) (“The test is a flexible one [and] [i]njunctive relief may be
granted with either a high likelihood of success and some injury, or vice versa.”). The inverse, of
course, is true as well—“[i]f the plaintiff makes a particularly weak showing on one factor . . .
the other factors may not be enough to compensate.” Morgan Stanley DW Inc. v. Rothe, 150 F.
Supp. 2d 67, 72 (D.D.C. 2001); see also Hunter v. FERC, 527 F. Supp. 2d 9, 14 (D.D.C. 2007).
This approach has been referred to as a “sliding scale.” Davis, 571 F.3d at 1291. “‘Despite this
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flexibility, though, a movant must demonstrate ‘at least some injury’ for [an] injunction to issue,
for ‘the basis of injunctive relief in the federal courts has always been irreparable harm.’”
Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (quoting CityFed Fin. Corp. v. Office of
Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995), and Sampson v. Murray, 415 U.S. 61, 88
(1974)).
The movant cannot simply make “broad conclusory statements” about the existence of
harm. Rather, she must “submit[] . . . competent evidence into the record . . . that would permit
the Court to assess whether [s]he, in fact, faces irreparable harm to h[er] professional life if an
injunction is not issued.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008). This is so
because the movant has the burden “to make a clear showing that irreparable injury is likely in
the absence of an injunction,” not just that it is theoretically possible. Dorsey v. District of
Columbia, 711 F. Supp. 2d 133, 135 (D.D.C. 2010).
The Court finds that plaintiff has not made that showing here. Plaintiff has not submitted
any competent evidence that would permit the Court to assess whether she in fact faces
irreparable harm. The allegations in plaintiff’s application are conclusory—she alleges that she
suffers from anxiety and stress due to an allegedly hostile and bullying work environment, and
that she has been verbally reprimanded in front of her coworkers. Compl. 1. In other words,
plaintiff has provided no support for her claims that harassment is occurring other than her bare
allegations, and thus she has not demonstrated “that irreparable injury is likely in the absence of
an injunction.” Dorsey, 711 F. Supp. 2d at 135. In addition, in light of the extensive
administrative remedies available to plaintiff, the Court would be hard-pressed to conclude that it
is likely that plaintiff will face irreparable harm unless the Court issues the injunction.
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Moreover, plaintiff has not established that she is likely to succeed on the merits. As the
government points out, and as plaintiff implicitly recognizes in her TRO request, she probably
has not exhausted her administrative remedies. Def.’s Opp’n 15-16; TRO Mot. 1. (alleging that
she has filed “30 plus grievances to show that [her] two supervisors are at fault, as well as filed
an EEO case, as well as a Workman’s Comp case, [and] an OSHA case to protect [her] from
bodily harm from both [of her] supervisors”). Under Title VII, as an employee of the federal
government, plaintiff may raise claims of employment discrimination, retaliation, and
harassment in federal court only after she has exhausted certain administrative remedies. 42
U.S.C. § 2000e et. seq; 29 C.F.R. § 1614.407. One requirement is that she file a formal
administrative complaint. She may not pursue her claims in federal court until the earlier of (1) a
final decision on the complaint or (2) 180 days from the filing of the complaint. 42 U.S.C. §
2000e-16(c). Although she filed a formal complaint with the HUD Office of Equal Employment
Opportunity in “late May or early June,” it was dismissed and her appeal is currently pending
before the EEOC. Def.’s Opp’n Ex. 2 (Declaration of Theresa Marshall). Because a final action
has not been taken on her complaint, and because 180 days have not passed since she filed the
complaint, her claim is not yet ripe for this Court’s review. Hence, plaintiff has not demonstrated
a “substantial likelihood” of success on the merits.
In this context, where plaintiff’s showing on two of the preliminary injunction factors is
particularly weak, the other factors are unlikely to compensate. See Morgan Stanley, 150 F.
Supp. 2d at 72. It is at least uncertain as to whether defendants would be substantially injured by
an injunction. Winter, 555 U.S. at 20. And plaintiff has produced no argument that an injunction
is in the public interest. Id. Overall, considering each of the relevant factors, plaintiff has not met
the standard for the issuance of a temporary restraining order or preliminary injunction.
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Accordingly, plaintiff’s requests for a temporary restraining order and preliminary
injunction will be denied.
5. Plaintiff must respond to defendants’ motion to dismiss
Also currently before the Court is defendants’ motion to dismiss, filed on August 20,
2013. In Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), the Court of Appeals held that a
district court must take pains to advise a pro se party of the consequences of failing to respond to
a dispositive motion. “That notice . . . should include an explanation that the failure to
respond . . . may result in the district court granting the motion and dismissing the case.” Id. at
509. In addition, the Court's local rules state that “[w]ithin 14 days of the date of service or at
such other time as the court may direct, an opposing party shall serve and file a memorandum of
points and authorities in opposition to the motion [or] the court may treat the motion as
conceded.” Local Civil Rule 7(b).
Accordingly, the Court will order that plaintiff respond to the defendants’ motion to
dismiss by not later than September 17, 2013. If plaintiff does not respond by that date, the Court
will treat the motion as conceded and may summarily dismiss the complaint against the moving
defendants or enter judgment in their favor. Plaintiff should include in her response any
challenge to the U.S. Attorney’s certification that the defendants were acting within the scope of
their employment. A separate Order will be filed on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: August 27, 2013
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