Jacobs v. Vrobel

• Citation: 724 F.3d 217
• Decision Date: 26 July 2013
• Docket Number: No. 12–5107.,12–5107.
• Parties: Linda JACOBS, Appellant v. Michael J. VROBEL, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

724 F.3d 217

Linda JACOBS, Appellant

v.Michael J. VROBEL, Appellee.

No. 12–5107.

United States Court of Appeals, District of Columbia Circuit.

Argued April 9, 2013.

Decided July 26, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:11–cv–00953).

Martin F. McMahon argued the cause for the appellant.

Peter C. Pfaffenroth, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

Before: HENDERSON and BROWN, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Linda Jacobs (Jacobs), an employee of the United States General Services Administration (GSA), sued her long-time supervisor, Michael Vrobel (Vrobel), in the District of Columbia Superior Court for defamation and interference with her attempts to secure alternative employment. Because Vrobel was then (and remains) a federal employee, Jacobs's lawsuit was not a garden-variety tort suit. Instead, pursuant to the Westfall Act, Pub.L. No. 100–694, 102 Stat. 4563 (codified as amended in relevant part at 28 U.S.C. § 2679), the United States Attorney General certified that Vrobel's conduct was within the scope of his employment, thus removing the case to federal district court and substituting the United States as the defendant. Concluding that Vrobel did in fact act within the scope of his employment, the district court dismissed the suit as jurisdictionally barred by the Federal Tort Claims Act (FTCA). Mem. Op., Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. Mar. 8, 2012). On appeal, Jacobs argues that Vrobel's conduct was outside the scope of his employment. We disagree and therefore affirm the district court's dismissal for lack of subject matter jurisdiction.

I.

Jacobs began working for GSA in June 1990 and Vrobel served as her supervisor from 1995 through 2010. Compl. ¶¶ 4–5 (Joint Appendix (JA) 2). Jacobs originally worked in another position but in 1999 GSA promoted her to “a Contract Specialist position ... as a result of a successful Equal Employment Opportunity complaint that she filed.” Compl. ¶ 6 (JA 2). Jacobs alleges that, from 1992 to the present, she has received numerous awards and positive performance ratings from GSA. Compl. ¶¶ 7–8 (JA 2). Despite seeking other employment since September 1990, however, Jacobs has not received a job offer. Instead, she alleges, she “has been literally held prisoner at GSA ... for the past 20 years.” Compl. ¶ 13 (JA 3). She believes that she has been unable to find a new job because Vrobel “defames [her] and criticizes her work abilities when [a] potential employer calls for a reference.” Compl. ¶ 21 (JA 4). She alleges that “[o]n numerous occasions when she was told that she had [a] new job [for which she interviewed], the new job disappeared after the hiring agency contacted GSA and Plaintiff's supervisor.” Compl. ¶ 20 (JA 4).

On May 2, 2011, Jacobs filed a two-count complaint in the District of Columbia Superior Court against Vrobel for defamation and “malicious intentional interference with plaintiff's alternative employment opportunities.” ¹ Compl. ¶¶ 12–32 (JA 3–5). Under the Westfall Act, however, if a plaintiff brings a tort suit against a federal employee in state court, the Attorney General may certify 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.” 28 U.S.C. § 2679(d)(1). Upon certification, the employee is dismissed from the action, the United States is substituted as the defendant, the claim is removed to federal district court and the claim becomes governed by the FTCA. Id. § 2679(d)(1)-(2). As the United States Supreme Court has explained, “the purpose of the Westfall Act [is] to shield covered employees not only from liability but from suit.” Osborn v. Haley, 549 U.S. 225, 248, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007).

On May 23, 2011 the Attorney General through his delegate certified that Vrobel “was acting within the scope of his employment ... at the time of the alleged incidents.” Certification, Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. May 23, 2011) (JA 14). The certification removed Jacobs's suit to the United States District Court for the District of Columbia and substituted the United States as the defendant. The next day, the United States moved to dismiss Jacobs's complaint for lack of subject matter jurisdiction and failure to state a claim, attaching an affidavit in which Vrobel declared that he acted within the scope of his employment at all relevant times and in all relevant actions. Mot. to Dismiss, Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. May 24, 2011). On March 8, 2012, the court dismissed Jacobs's complaint for lack of subject matter jurisdiction. Mem. Op. 10, Jacobs v. Vrobel, No. 11–cv–953 (D.D.C. Mar. 8, 2012). Because Vrobel had acted in the scope of his employment, the court concluded, Jacobs's only recourse was to proceed under the FTCA against the United States, id. at 8, and, because Jacobs's claims were governed by the FTCA, it lacked subject matter jurisdiction for two independent reasons: first, Jacobs failed to exhaust administrative remedies under the FTCA and second, the United States had not waived its sovereign immunity from suit for the torts Jacobs alleged. Id. at 8–10. Jacobs timely appealed.

II.

Jacobs argues that the district court erred in holding that Vrobel acted in the scope of his employment when he allegedly defamed Jacobs and interfered with her alternative employment opportunities. In addition, Jacobs complains that she should have been granted limited discovery on the scope of employment issue before dismissal. We review de novo the district court's dismissal, Nat'l Air Traffic Controllers Ass'n v. Fed. Serv. Impasses Panel, 606 F.3d 780, 786 (D.C.Cir.2010), including its conclusion that Vrobel was acting within the scope of his employment, Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 664 (D.C.Cir.2006) (per curiam). In so doing, we assume that “all material factual allegations in the complaint” are true and accord the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (quotation marks omitted).

In a Westfall Act case, we consider more than the allegations in the complaint to determine whether the defendant acted in the scope of his employment. See Osborn, 549 U.S. at 249, 127 S.Ct. 881. The Attorney General's certification that the defendant was so acting is prima facie evidence of that fact. Ballenger, 444 F.3d at 662;see also Wilson v. Libby, 535 F.3d 697, 711 (D.C.Cir.2008) (“The certification carries a rebuttable presumption that the employee has absolute immunity from the lawsuit and that the United States is to be substituted as the defendant.”). To rebut the certification, the plaintiff must allege, in either the complaint or a subsequent filing, specific facts “that, taken as true, would establish that the defendant['s] actions exceeded the scope of [his] employment.” Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.Cir.2003). If the plaintiff satisfies this burden, “he may, if necessary, attain ‘limited discovery’ to resolve any factual disputes over jurisdiction.” Wuterich v. Murtha, 562 F.3d 375, 381 (D.C.Cir.2009) (quoting Stokes, 327 F.3d at 1214, 1216). In determining whether the plaintiff has alleged facts to rebut the certification, we heed the Supreme Court's instruction:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We accept factual allegations as true but we do not do the same for legal conclusions—therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

In determining whether an employee acted within the scope of his employment, we consider the substantive law of the jurisdiction where the employment relationship exists—here, the law of the District of Columbia (District). Majano v. United States, 469 F.3d 138, 141 (D.C.Cir.2006). Courts of the District analyze this issue via a test established by the Second Restatement of Agency, which provides:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits; [and]

(c) it is actuated, at least in part, by a purpose to serve the master....

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228 (1958) (Restatement); see Wilson, 535 F.3d at 711. The test is “objective” and is “based on all the facts and circumstances.” Weinberg v. Johnson, 518 A.2d 985, 991 (D.C.1986). Moreover, as we recently noted, the District has broadly interpreted the test:

Many states and D.C. apply the scope-of-employment test very expansively, in part because doing so usually allows an injured tort plaintiff a chance to recover from a deep-pocket employer rather than a judgment-proof employee. The scope-of-employment test often is akin to asking whether the defendant merely was on duty or on the job when committing the alleged tort. Because of the broad scope-of-employment...