Healy ex rel. Healy v. U.S., Civil Action No. 05-1979(RMC).

• Decision Date: 14 June 2006
• Docket Number: Civil Action No. 05-1979(RMC).
• Citation: 435 F.Supp.2d 157
• Parties: Clare HEALY, Individually and as Parent and Next Friend of Her Minor Child, Rodney HEALY, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

435 F.Supp.2d 157

Clare HEALY, Individually and as Parent and Next Friend of Her Minor Child, Rodney HEALY, Plaintiffs, v. UNITED STATES of America, Defendant.

Civil Action No. 05-1979(RMC).

United States District Court, District of Columbia.

June 14, 2006.

Clare Healy, Dover, NH, pro se.

Rodney Healy, Dover, NH, pro se.

John C. Truong, U.S. Attorney's Office for the District of Columbia, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLYER, District Judge.

Clare Healy, individually and on behalf of her minor son, Rodney Healy, sues Special Agent ("S.A.") Hugh Stuart Williamson of the Federal Bureau of Investigation ("FBI") for injuries allegedly sustained when, in June 2002, S.A. Williamson's vehicle struck her vehicle in downtown Washington, D.C. Although Ms. Healy notified S.A. Williamson and the FBI that she and her son were represented by counsel in connection with the accident, she failed to respond to the FBI's two requests that she appropriately document her claims for processing pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Instead, she waited more than two years, and filed this, tort action in D.C. Superior Court.

The United States certified that S.A. Williamson was on official duty when the accident occurred, substituted the United States as the sole defendant, and removed to this Court. The United States now moves to dismiss, asserting that the Court lacks subject matter jurisdiction due to Ms. Healy's failure to exhaust administrative remedies. Ms. Healy does not contest her failure to exhaust; rather, she contends that because S.A. Williamson was not acting within the scope of his employment at the time of the accident, the FTCA does not apply, and it is S.A. Williamson, not the United States, that is the proper defendant.

Thus, the narrow question presented here is whether S.A. Williamson was "acting within the scope of his office or employment" at the time of the accident. Ms. Healy requests jurisdictional discovery on this issue. However, the evidence before the Court on this point being uncontroverted, and Ms. Healy's failure to file proper FTCA claims being undisputed, the Court finds it has no jurisdiction over the action. The United States's motion to dismiss for lack of subject matter jurisdiction will be granted.

I. FACTUAL BACKGROUND

At about 8:15 a.m. on June 17, 2002, S.A. Williamson was driving a vehicle that struck the rear of a car operated by Ms. Healy.¹ Inside Ms. Healy's car was her son, Rodney Healy. Healy Aff. ¶ 2. At the time of the collision, S.A. Williamson was en route from the FBI Field Office in Washington, D.C. — where he had dropped off a colleague — to his own office in Calverton, Maryland. Williamson Decl. ¶ 4. He was driving an FBI-owned vehicle. See id. ¶ 2.

By letter dated August 16, 2002, attorney Jay S. Marks notified S.A. Williamson that he had been retained by Ms. Healy in connection with the accident. That letter said simply: "This office represents Ms. Clare Healy for damages and personal injuries sustained in an automobile accident on June 17, 2002[,] on New York Avenue, N.E., near its intersection with First Street, N.E., in Washington, D.C. Please give this letter to your automobile insurance company and to your employer." Def.'s Mot. to Dismiss, Exh. A. Robert W. Chamberlain, Chief Division Counsel, answered Mr. Marks's letter on October 7, 2002. Id., Exh. B. That response stated, in part:

Please be advised that in order to process an administrative claim pursuant to the provisions of the Federal Tort Claims Act (FTCA), we must be in receipt of a properly completed claim. Enclosed for your client, Clare Healy's convenience[,] are two blank Standard Form 95's (SF-95's), Claims for Damage, Injury or Death....

In order for you to present a claim on behalf of Ms. Healy and to comply with the regulations governing the filing of such claims, Title 28, Code of Federal Regulations (C.F.R.), Sections 14.2(a) and 14.3(b), it is necessary that you submit documentation signed by Ms. Healy which evidences your authority to present a claim on her behalf as her agent or representative.

Id. at 1. Mr. Marks wrote to Mr. Chamberlain again on December 17, 2002. Instead of submitting the claim forms as Mr. Chamberlain had suggested, Mr. Marks stated only: "This office represents Mr. Rodney Healy, a minor child, for damages and personal injuries sustained as a passenger in an automobile accident on June 17, 2002, on New York Avenue, N.E., near its intersection with First Street, N.E., in Washington, D.C. Mr. Healy is the minor son of Ms. Clare Healy, whose file number is referenced above." Def.'s Mot. to Dismiss, Exh. C. Mr. Chamberlain responded by letter dated January 24, 2003, again advising Mr. Marks of the appropriate way to present a claim under the FTCA and forwarding blank SF-95's. Neither Ms. Healy nor Mr. Marks submitted the necessary paperwork thereafter. Chamberlain Decl. at 2-3.

Ms. Healy filed suit in D.C. Superior Court on June 16, 2005. On October 6, 2005, the United States certified that S.A. Williamson was acting within the scope of his employment at the time of the incident and substituted the United States as the sole defendant, pursuant to the FTCA. See 28 U.S.C. § 2679(d)(1).² On the same day, the FBI also removed the action to this Court. The FBI's motion to dismiss, filed on December 14, 2005, has been fully briefed and is now ripe for decision.

II. LEGAL STANDARDS

The United States moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction. Generally, under Rule 12(b)(1), the Plaintiff's bear the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F.Supp.2d 138, 142 (D.D.C.2005); see Lockamy v. Truesdale, 182 F.Supp.2d 26, 30-31 (D.D.C.2001).

III. DISCUSSION

As the King of Siam would have said to Anna, this case is a puzzlement.³ Twice advised how properly to file her claims, Ms. Healy failed to comply. Mr. Chamberlain specifically identified the applicable statute and regulations and provided the appropriate forms, with thorough directions. Instead of following those directions and pursuing her claims against the United States, which has ample money to pay any damages proven, Ms. Healy has insisted on suing S.A. Williamson, who may well not.

Ms. Healy does not dispute that she failed to file the appropriate and necessary forms under the FTCA; this point is deemed conceded. See Fox v. Am. Airlines, Inc., No. 02-2069, 2003 WL 21854800, at *2, 2003 U.S. Dist. LEXIS 13606, at *5 (D.D.C. Aug. 5, 2003) ("[W]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded, even when the result is dismissal of the entire case.").⁴ Instead, she argues that S.A. Williamson was not "acting within the scope of his office or employment" at the time of the accident, 28 U.S.C. § 1346(b), and requests jurisdictional discovery on the issue. The Court finds otherwise from the undisputed record facts, and denies the request for jurisdictional discovery.

A. An Evidentiary Hearing is Unnecessary

The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, 28 U.S.C. § 2679(d), provides that a federal employee is immune from tort liability when he is "acting within the scope of his office or employment at the time of the incident out of which the claim arose." Id. § 2679(d)(1). Pursuant to the Westfall Act, when the Attorney General or his designee believes that a federal employee was acting within the scope of employment, he may issue a certification to that effect. Haddon v. United States, 68 F.3d 1420, 1423 (D.C.Cir.1995). "Where, as here, the lawsuit is initially filed in state court, this certification has three consequences: it requires the Attorney General to remove the lawsuit to the local federal court; it requires the substitution of the United States for the federal employee as the defendant in the lawsuit; and it converts the lawsuit into an action against the United States under the Federal Tort Claims Act." Id. (citing 28 U.S.C. § 2679(d)(2)). However, this certification is not conclusive regarding substitution; rather, the Court may determine independently whether the employee acted within the scope of employment and, therefore, whether substitution of the federal government is proper. Id. (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 431-32, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), and Kimbro v. Velten, 30 F.3d 1501, 1509-10 (D.C.Cir.1994)). This Court's review of the Attorney General's scope-of-employment certification is de novo. Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1154 (4th Cir.1997); McHugh v. Univ. of Vt., 966 F.2d 67, 71-72 (2d Cir.1992).

Where a plaintiff, like Ms. Healy, challenges the scope-of-employment certification, her "burden [i]s to raise a material dispute regarding the substance of [that] determination by alleging facts that, if true, would establish that the defendant[ was] acting outside the scope of [his] employment." Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.Cir.2003). In other words, to obtain discovery and an evidentiary hearing, id. at 1215, Ms. Healy is "merely required to plead sufficient facts that, if true, would rebut the certification," id. at 1216. But "[n] of...