Caesar v. U.S., CIV.A.02-612(EGS).

• Decision Date: 30 March 2003
• Docket Number: No. CIV.A.02-612(EGS).,CIV.A.02-612(EGS).
• Citation: 258 F.Supp.2d 1
• Parties: Camille M. CAESAR Plaintiff, v. UNITED STATES of America Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

258 F.Supp.2d 1

Camille M. CAESAR Plaintiff, v. UNITED STATES of America Defendant.

No. CIV.A.02-612(EGS).

United States District Court, District of Columbia.

March 30, 2003.

Sander M. Davidson, Karp, Frosh, Lapodus, Wigodsky & Norwind, P.A., Washington, DC, for Plaintiff.

Heather D. Grahm-Oliver, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

SULLIVAN, District Judge.

Plaintiff Camille M. Caesar commenced a tort action against her co-worker, Ms. Patricia Robinson, in the Superior Court of the District of Columbia. Both Ms. Caesar and Ms. Robinson are employed in the office of the General Counsel for the Board of Governors of the Federal Reserve System. Upon certification by the U.S. Attorney General that Ms. Robinson was acting within the scope of her employment at the time of the incident underlying plaintiffs claims, the Superior Court action was removed to this Court. Defendant now moves to dismiss plaintiffs claims in their entirety pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6), alleging, inter alia, that Ms. Caesar's exclusive remedy, if any, lies under the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA"). For the following reasons, defendant's motion is hereby GRANTED and plaintiffs action is DISMISSED in its entirety.

I. BACKGROUND

Ms. Caesar alleges that, on July 11, 2001, at approximately 6:00 p.m., she went to a colleague's office to discuss a matter on which they were working. Compl. ¶ 2. As she stood in the colleague's doorway chatting, Ms. Caesar mentioned that she was surprised that their common supervisor had become tied up as of late due to recent developments in another matter because she had, some time previously, sent an article warning of the developments in question to two members of the team working with the supervisor on that project. Caesar Aff. ¶ 6. At this point, Ms. Caesar alleges that Ms. Robinson, another member of the team working on the project she was discussing, whose office was within earshot of where Ms. Caesar was standing, took offense to her comments and began yelling at her. Id. ¶ 7. A verbal exchange between the two women ensued. Id. It is undisputed that the exchange clearly related to Ms. Caesar's comments regarding the project on which Ms. Robinson was working. Id.; Robinson Decl. ¶¶ 5-6. Ms. Caesar alleges that, immediately following their verbal exchange, Ms. Robinson slammed her office door into Ms. Caesar using her full body weight, hitting Ms. Caesar in the back of her right shoulder, and continued to push against the door and Ms. Caesar. Caesar Aff. ¶ 8.

Ms. Caesar was initially treated at Georgetown University Hospital for injuries arising from this incident, and was subsequently diagnosed with a right rotator cuff tear, for which she ultimately underwent surgery. Id. ¶ 11. Ms. Caesar continues to suffer pain as a result of this injury, and her activities remain restricted. Id.

Ms. Caesar subsequently reported this incident to her supervisors, the General Counsel, the Assistant Director of Human Resources, the Vice Chairman of the Federal Reserve Board, the Inspector General's Office, and the District of Columbia police. Caesar Aff. ¶ 10. She also filed a "Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation" dated February 15, 2002 with the U.S. Department of Labor pursuant to FECA.

Ms. Caesar commenced this action against Ms. Robinson in D.C. Superior Court on March 1, 2002, asserting one count of assault and battery and one count of negligent operation of a door. On March 29, 2002, Assistant United States Attorney Mark Nagle, Chief of the Civil Division, certified, pursuant to 28 U.S.C. § 2679(d) and the authority delegated to the United States Attorney by 28 C.F.R. § 15.3, that Ms. Robinson was acting within the scope of her employment at the time the acts upon which Ms. Caesar's claims are based. Upon filing of the certification, the United States was substituted as the sole defendant in this action, pursuant to 29 U.S.C. § 2679(d)(2), and the action was removed to this Court.

II. ANALYSIS

A. Standard of Review

The Court will not grant a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Accordingly, at this stage of the proceedings, the Court accepts as true all of the factual allegations in plaintiff's Complaint. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985). Plaintiff is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276.

The standard of review for a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is virtually identical to that used for 12(b)(6) motions. See, e.g., Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999). However, the Court is free to consider material outside the pleadings for purposes of resolving jurisdictional issues. Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C.2002) ("[a] court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject matter jurisdiction.") (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947)). So long as the Court considers matters outside the pleadings only with respect to the issues raised pursuant to Fed.R.Civ.P. 12(b)(1) and relating to lack of subject matter jurisdiction, a motion to dismiss is not converted to one for summary judgment. Artis v. Greenspan, 223 F.Supp.2d at 152 n. 1. Id. In the Rule 12(b)(1) context, the plaintiff bears the burden of proving jurisdiction. Id.

B. Federal Employees' Compensation Act

Defendant submits that this Court lacks subject matter jurisdiction over this action because plaintiffs exclusive remedy lies under the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq., which provides for compensation to federal employees for injuries sustained while performing their official duties. 5 U.S.C. § 8102; 5 U.S.C. § 8116(c); see also United States v. Lorenzetti, 467 U.S. 167, 169, 104 S.Ct. 2284, 2286, 81 L.Ed.2d 134 ("Federal employees who are injured while engaged in the performance of their official duties are entitled under FECA to compensation for medical expenses, lost wages, and vocational rehabilitation. Because the United States' liability for workrelated injuries under FECA is exclusive, see § 8116(c), respondent cannot recover from the United States for losses such as pain and suffering that are not compensated under FECA."); Carroll v. Tennessee Valley Authority, 697 F.Supp. 508, 511 (D.D.C.1988).

The question of whether plaintiffs claims fall within the ambit of FECA, and are thus beyond this Court's jurisdiction, turns on whether Ms. Caesar was injured "while engaged in the performance of [her] official duties." See United States v. Lorenzetti 467 U.S. at 169, 104 S.Ct. 2284. Plaintiff's entire opposition to defendant's motion is premised on her contention that Ms. Robinson was not, as defendant contends, acting within the scope of her employment when the incident underlying these claims occurred. PL's Opp'n at 2. Plaintiff further submits that, pursuant to the U.S. Supreme Court's decision in Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), she is entitled to an evidentiary hearing on this issue.¹ Id. Plaintiff concedes that, should the Court find at the conclusion of such a hearing that Ms. Robinson was acting within the scope of her employment at the time she allegedly injured Ms. Caesar, her claims would be subject to dismissal. Id.

It is true that Lamagno holds that certification by the U.S. Attorney that a federal employee was acting within the scope of her employment is subject to judicial review by the District Court. Lamagno, 515 U.S. at 436-37, 115 S.Ct. 2227; see also Haddon v. United States, 68 F.3d 1420, 1423 (D.C.Cir.1995); Tripp v. Executive Office of the President, 200 F.R.D. 140, 147 (D.D.C.2001); but see Hosey v. Jacobik, 966 F.Supp. 12 (D.D.C.1997) ("The Government's certification creates a rebuttable presumption that [the employee] was acting within the scope of employment."). However, neither Lamagno nor the cases that follow it confer on the party challenging the certification a right to an evidentiary hearing on the question. Koch v. United States, 209 F.Supp.2d 89, 92-94, Civ. A. No. 01-1385, 2002 U.S. Dist. LEXIS 11090, *7-10 (D.D.C. May 17, 2002). If the Court may independently determine, taking all of the allegations of the Complaint as true, and making all reasonable factual inferences in the plaintiffs favor, that, as a matter of law, the alleged tortfeasor was acting within the scope of her employment when plaintiff was injured, then no evidentiary hearing is required. See Hoston v. Silbert, 681 F.2d 876, 879 (D.C.Cir.1982) ("Whether given acts are within the scope of employment is ultimately a legal question."); Koch v. United States, 209 F.Supp.2d 89, 92-94, Civ. A. No. 01-1385, 2002 U.S. Dist. LEXIS 11090 *7-10 (no discovery or evidentiary hearing warranted where, even assuming plaintiffs factual allegations to be true, plaintiff fails to show employee was acting outside of the scope of her employment); see also Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C.Cir. 1994) (if there is a dispute as to a material fact, the district court must resolve the question of scope of employment at an evidentiary hearing). Such is the case here.

The question of whether Ms. Robinson was acting within the scope of employment at the time Ms. Caesar was injured is governed by the law of the District of Columbia....