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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2003 Decided May 6, 2003
No. 02-5120
BILLY STOKES,
APPELLANT
v.
STEVEN CROSS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02305)
Richard Carnell Baker argued the cause and filed the
briefs for appellant.
Beverly M. Russell, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: ROGERS and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Contending that the district failed
to follow the procedures set forth in Kimbro v. Velten, 30
F.3d 1501 (D.C. Cir. 1994), Sergeant Billy S. Stokes of the
Uniformed Police Branch of the United States Government
Printing Office appeals the dismissal of his defamation com-
plaint against seven co-workers. He contends that the dis-
trict court treated a Westfall certification as dispositive rath-
er than allowing him to conduct discovery on the scope-of-
employment issue and holding an evidentiary hearing. We
agree and reverse.
I.
According to the complaint’s factual allegations, which this
court accepts as true, Sturm, Ruger & Co. v. Chao, 300 F.3d
867, 871 (D.C. Cir. 2002), Sergeant Billy S. Stokes worked for
over twenty-five years as a member of the Uniformed Police
Branch of the United States Government Printing Office
(‘‘GPO’’) and had an unblemished employment record. That
almost changed as a result of an incident on November 4,
2000, while Stokes was the ‘‘Officer-in-Charge.’’ Officer Wil-
liam Wilson, Stokes’ subordinate, was stationed that evening
at a GPO lot where an unknown individual was attempting to
enter without authorization. After Wilson radioed for assis-
tance, Stokes and the central dispatcher monitored the situa-
tion on surveillance cameras and maintained radio contact
with Wilson until the incident was resolved. Several months
later, Stokes received a Notice of Proposed Adverse Employ-
ment Action (‘‘Notice’’), which charged that on November 4
he had failed to provide Officer Wilson with necessary assis-
tance in dealing with the trespasser.
Stokes challenged the Notice as ‘‘false and malicious or
made with reckless disregard for the truth,’’ and GPO can-
celed the Notice. Stokes also filed a complaint in the Superi-
or Court of the District of Columbia, alleging that the seven
co-workers not only failed reasonably to investigate the inci-
3
dent in good faith and to interview critical eyewitnesses, but
also destroyed and ignored critical evidence, including video
and audio tapes that would have exonerated Stokes. Specifi-
cally, Stokes alleged that Lieutenant Steven Cross and Com-
mander James C. Raysinger, Stokes’ superiors, induced the
participation of Manuel Rivera, Phillip Griffin, and Collins
Bailey, Jr., Stokes’ subordinates, to manufacture false state-
ments in support of the Notice. He further alleged that they
had threatened Corporal Sherman Gray’s career and liveli-
hood if he did not make a statement adverse to Stokes; Gray
executed a statement prepared by Griffin and Rivera but
later recanted it. The defendants’ actions, Stokes claimed,
were designed to prevent his promotion, as it was well known
that he intended to apply for the position of his supervisor,
who had recently announced his plans to retire. Stokes
alleged that he was ‘‘a leading and an extremely well-qualified
candidate’’ for the position because of his seniority and ‘‘un-
blemished employment performance history.’’ ‘‘[D]ue to
spite, malice and ill-will and other sinister reasons,’’ he
claimed, the defendants sought to besmirch his record and foil
his promotion opportunity by ‘‘orchestrat[ing] a conspiracy to
injure, defame, harm, or destroy’’ his professional reputation.
On motion of three defendants the case was removed to
United States district court. 28 U.S.C. §§ 1441, 1442(a)(1), &
1446 (2000). In the district court, Assistant United States
Attorney (‘‘AUSA’’) Mark E. Nagle, by authority delegated to
and by the United States Attorney, filed a certification stating
that ‘‘C. Steven Cross, Raymond Garvey, James C. Raysing-
er, William Wilson, and Collins Bailey, Jr. were acting within
the scope of their authority as employees of the United States
at the time of [the] alleged incidents.’’ AUSA Nagle later
filed a second certification stating that Griffin and Rivera
were acting within the scope of their employment.
At a status call, the district court considered AUSA Nagle’s
certification to be ‘‘prima facie evidence’’ on the scope-of-
employment issue and stated that Stokes had ‘‘given no
evidence to suggest that Mr. Nagle is not able to make the
certification that he has.’’ The court therefore substituted
the United States as defendant and, because the United
4
States had not waived its immunity from defamation claims,
28 U.S.C. § 2680(h) (2000), dismissed Stokes’ claims against
the five defendants named in the AUSA’s first certification.
After receiving the second certification, the court, sua sponte,
dismissed the remaining claims.
II.
In Westfall v. Erwin, 484 U.S. 292, 300 (1988), the Supreme
Court held that federal employees are absolutely immune
from state tort liability only if (1) they were acting within the
scope of their employment and (2) their actions were discre-
tionary in nature. Congress acted quickly to nullify ‘‘the
Westfall decision by establishing legislated standards to gov-
ern the immunity of Federal employees who have allegedly
committed state common law torts.’’ H.R. Rep. No. 100–700,
at 4 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5947. The
Federal Employees Liability Reform and Tort Compensation
Act of 1988, commonly known as the Westfall Act, 28 U.S.C.
§ 2679(d) (2000), negated the discretionary function require-
ment, providing instead that immunity attaches so long as the
employee ‘‘was acting within the scope of his office or employ-
ment at the time of the incident out of which the claim
aroseTTTT’’ Id. § 2679(d)(1). Thus, when a federal employee
is sued for a wrongful or negligent act, the United States
Attorney General, or by designation the United States Attor-
ney in the district where the claim is brought, may certify
that the employee was acting at the time within the scope of
his or her employment. 28 U.S.C. § 2679(d)(1); 28 C.F.R.
§ 15.3(a) (2002). ‘‘Upon certification TTT any civil action or
proceeding commenced upon such claim in a State court shall
be removed TTT to the district court of the United States for
the district and TTT shall be deemed to be an action or
proceeding brought against the United StatesTTTT’’ 28
U.S.C. § 2679(d)(2). The Westfall Act further provides that
‘‘[t]his certification TTT shall conclusively establish scope of
office or employment for purposes of removal.’’ Id.
The Supreme Court has held that the government’s scope
of employment determination under the Westfall Act is judi-
5
cially reviewable regarding the substitution of the govern-
ment. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420
(1995). In Lamagno, the Court noted that the petitioner’s
claims arose in a foreign country and therefore fell within an
exception to the Federal Tort Claim Act’s waiver of the
United States’ sovereign immunity. Id. at 422. As a result,
‘‘substitution of the United States would cause the demise of
the actionTTTT’’ Id. The Attorney General, thus, had a
strong incentive to certify that the defendants were acting in
the scope of their employment, because the certification shel-
tered not only the individual employees but also the United
States from liability. Id. at 427–28. These circumstances,
the Court concluded, magnified the need for judicial review.
Id. at 429–30. The Court also observed that the legislative
history and purpose did not show ‘‘that Congress meant the
Westfall Act to commit the critical ‘scope-of-employment’
inquiry to the unreviewable judgment of the Attorney Gener-
al or her delegateTTTT’’ Id. at 426. The Court accordingly
concluded that ‘‘the Attorney General’s certification that a
federal employee was acting within the scope of his employ-
ment—a certification the executive official, in cases of the
kind at issue, has a compelling interest to grant—does not
conclusively establish as correct the substitution of the United
States as defendant in place of the employee.’’ Id. at 434.
This circuit had reached the same conclusion a year earlier
in Kimbro, which held that ‘‘[r]egardless of the content of the
certification TTT the federal district court must at least con-
duct an evidentiary hearing on the scope issue.’’ 30 F.3d at
1508. ‘‘If there is a material dispute as to the scope issue,’’
the court said, ‘‘the district court must resolve it at an
evidentiary hearing.’’ Id. at 1509. ‘‘[T]his procedure,’’ the
court continued, is ‘‘in keeping with the statutory scheme[,
which] does not really treat the certification as having any
particular evidentiary weightTTTT’’ Id. The court also con-
sidered the weight to which the government’s certification is
entitled, adopting the approach of the Third Circuit. Id. at
1509. In Melo v. Hafer, 13 F.3d 736 (3d Cir. 1994), the Third
Circuit treated the certification as entitled to ‘‘prima facie
effect’’ but stated that
6
[i]f the Attorney General’s certification is based on a
different understanding of the facts than is reflected in
the complaint, the plaintiff should be permitted reason-
able discovery and should then be called upon to come
forward, as if responding to a motion for summary
judgment, with competent evidence supporting the facts
upon which he would predicate liability, as well as any
other facts necessary to support a conclusion that the
defendant acted beyond the scope of his employment.
Id. at 747; Kimbro, 30 F.3d at 1509. This court has reiterat-
ed the Kimbro approach since the Supreme Court’s decision
in Lamagno, stating that 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 substi-
tute the federal government as the proper defendant.
Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995)
(citing Lamagno, 515 U.S. at 434; Kimbro, 30 F.3d at 1505).
The court also has noted that the scope of employment
question is controlled by applicable state law—here, District
of Columbia law. Id. at 1423.
Other circuits have agreed that a plaintiff challenging the
government’s scope-of-employment certification ‘‘bears the
burden of coming forward with specific facts rebutting the
certification,’’ and that the question of scope of employment is
governed by state law. Lawson v. United States, 103 F.3d
59, 60 (8th Cir. 1996); accord Singleton v. United States, 277
F.3d 864, 870–71 (6th Cir. 2002); Ross v. Bryan, 309 F.3d
830, 833–34 (4th Cir. 2002); McClachlan v. Bell, 261 F.3d 908,
909–11 (9th Cir. 2001). Because the plaintiff cannot dis-
charge this burden without some opportunity for discovery,
the district court may permit limited discovery and hold an
evidentiary hearing to resolve a material factual dispute
regarding the scope of the defendant’s employment. E.g.,
Singleton, 277 F.3d at 871; Taboas v. Mlynczak, 149 F.3d
576, 580–81 (7th Cir. 1998).
7
Upon de novo review of the district court’s dismissal of
Stokes’ complaint pursuant to Rules 12(b)(1), 12(b)(2), and
12(b)(6) of the Federal Rules of Civil Procedure, Sturm,
Ruger & Co., 300 F.3d at 871; Wilson v. Pena, 79 F.3d 154,
162 n.1 (D.C. Cir. 1996), we find that the district court gave
no consideration to whether a material dispute may exist
concerning the seven defendants’ scope of employment. Ob-
serving that AUSA Nagle had certified that the defendants
acted within the scope of their employment, the district court
stated that the certification served as ‘‘prima facie evidence’’
and Stokes had ‘‘given no evidence to suggest that Mr. Nagle
is not able to make the certification that he has.’’ In opposi-
tion to the motion to dismiss, however, Stokes made essential-
ly the same arguments he makes here to show that he was
entitled to discovery on the scope-of-employment issue.
When government counsel stated her reply brief would argue
that the defendants were in fact acting within the scope of
their employment under District of Columbia law, the court
responded, ‘‘Well, in lieu of your reply I will just accept your
representation that you would state that. That is the law, as
I understand it, and TTT Plaintiff has made no showing that
Mr. Nagle is for any reason not qualified to make the
certification that he has.’’ The court then dismissed Stokes’
complaint against five defendants ‘‘for essentially the reasons
set forth by the government in its motion and the scope-of-
employment certificationTTTT’’ The court adopted the same
approach in accepting AUSA Nagle’s subsequent certification
and sua sponte dismissed Stokes’ complaint against the re-
maining two defendants.
The district court misapprehended the law regarding
scope-of-employment certifications. Stokes’ burden was not
to show that AUSA Nagle lacked the authority to issue the
certification. Stokes understandably has never challenged
that authority. See 28 U.S.C. § 2679(d); 28 C.F.R. § 15.3(a).
Instead, Stokes’ burden was to raise a material dispute
regarding the substance of AUSA Nagle’s determination by
alleging facts that, if true, would establish that the defendants
were acting outside the scope of their employment. See
Kimbro, 30 F.3d at 1508–09. The district court never gave
8
Stokes that opportunity. Rather, the court essentially afford-
ed conclusive weight to AUSA Nagle’s certification and ap-
parently gave no thought to the possibility that the certifica-
tion may have been in error. This procedure was contrary to
Kimbro’s instruction that the district court ‘‘not really treat
the certification as having any particular evidentiary
weightTTTT’’ Id. at 1509.
Stokes’ complaint contains sufficient factual allegations to
warrant discovery on the question of scope of employment.
Rule 8’s liberal pleading standard requires only ‘‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,’’ Fed. R. Civ. P. 8(a)(2), and courts are
charged with construing the complaint ‘‘so TTT as to do
substantial justice,’’ Fed. R. Civ. P. 8(f). The Rules ‘‘do not
require a claimant to set out in detail the facts upon which he
bases his claim.’’ Conley v. Gibson, 355 U.S. 41, 47 (1957).
Rather, the ‘‘simplified notice pleading standard relies on
liberal discovery rules and summary judgment motions to
define disputed facts and issues and to dispose of unmeritori-
ous claims.’’ Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002) (citations omitted). ‘‘ ‘The issue is not whether the
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.’ ’’ Id. at 511
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). ‘‘To
that end, the complaint is construed liberally in the plaintiffs’
favor, and we grant plaintiffs the benefit of all inferences that
can be derived from the facts alleged.’’ Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(citations omitted).
Consequently, to obtain discovery and an evidentiary hear-
ing, Stokes need only have alleged sufficient facts that, taken
as true, would establish that the defendants’ actions exceeded
the scope of their employment. The scope issue is governed
by District of Columbia law, which looks to the Restatement
(Second) of Agency (1958) in defining scope of employment.
Haddon, 68 F.3d at 1423–24. Under the Restatement,
[c]onduct of a servant is within the scope of employment
if, but only if: [a] it is of the kind he is employed to
9
perform; [b] it occurs substantially within the authorized
time and space limits; [c] it is actuated, at least in part,
by a purpose to serve the master; and [d] if force is
intentionally used by the servant against another, the use
of force is not unexpectable by the master.
Restatement (Second) of Agency § 228(1). ‘‘Conduct of a
servant is not within the scope of employment if it is TTT too
little actuated by a purpose to serve the master.’’ Id.
§ 228(2). The District of Columbia’s formulation of this test
‘‘excludes from the scope of employment all actions commit-
ted ‘solely for [the servant’s] own purposes.’ ’’ Weinberg v.
Johnson, 518 A.2d 985, 990 (D.C. 1986) (footnote omitted).
‘‘[T]he intent criterion 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.’ ’’ Id. at 992 (citations omitted); see also Boykin v.
District of Columbia, 484 A.2d 560, 562 (D.C. 1984).
The government contends that the defendants’ conduct was
within the scope of their employment because it was inciden-
tal to their duty to investigate and report officers who fail to
render assistance. Stokes contends, however, that the defen-
dants’ alleged conduct—destroying critical evidence, prepar-
ing and submitting false affidavits by use of threat and
coercion, and engaging in other criminal acts—falls outside
the scope of their employment. It is unclear whether evi-
dence of such conduct alone would be sufficient under District
of Columbia law, which liberally construes the doctrine of
respondeat superior, at least with respect to the first prong of
the Restatement (Second) of Agency § 228(1). See Haddon,
68 F.2d at 1425–26; Weinberg, 518 A.2d at 988–90. But
Stokes’ counsel explained that, if permitted to conduct discov-
ery on the scope-of-employment issue, he would seek deposi-
tions of the defendants and other witnesses as well as state-
ments they had made and memoranda they had written
indicating their intent to prevent the best candidate, namely
Stokes, from getting the promotion. Such evidence, he main-
tained, would indicate that they had maliciously acted con-
10
trary to their employer’s interest and, therefore, outside the
scope of their employment.
Not every complaint will warrant further inquiry into the
scope-of-employment issue. In Singleton, 277 F.3d 864, for
example, the Sixth Circuit noted that while an evidentiary
hearing on the scope issue may sometimes be appropriate, the
district court had not erred in dismissing the claim without a
hearing where the plaintiff ‘‘did not allege any facts in his
complaint or in any subsequent filing TTT that, if true, would
demonstrate that [the defendant] had been acting outside the
scope of his employment.’’ Id. at 871; accord Davric Maine
Corp. v. United States Postal Serv., 238 F.3d 58, 67 (1st Cir.
2001). But that is not this case. Stokes was not required to
allege the existence of evidence he might obtain through
discovery. See Swierkiewicz, 534 U.S. at 512–13. He was
merely required to plead sufficient facts that, if true, would
rebut the certification. We hold that he met that burden and
is entitled to discovery.
Accordingly, because the district court deviated from the
Kimbro approach by essentially affording conclusive weight
to the AUSA’s scope-of-employment certifications and failing
to consider whether Stokes’ allegations entitled him to discov-
ery, we reverse. On remand, the district court shall allow
Stokes to conduct at least limited discovery on the scope-of-
employment issue.