Opinion
Civil Action No. 98-1703 (CKK).
March 8, 2005
MEMORANDUM OPINION
Presently before the Court is Plaintiff's Motion to Decertify Defendant Allen [118]. Plaintiff challenges the Attorney General's certification that Gary W. Allen was acting within the scope of his employment with respect to Allen's conduct and actions outlined in Plaintiff's Second Amended Complaint [72]. After an examination of Plaintiff's Motion, the parties' briefs, and the relevant law, the Court finds that Allen's certification was proper, and that Plaintiff's Motion to Decertify shall be denied.
I. PROCEDURAL HISTORY
The procedural history of this case is set out in detail in the Court's March 30, 2002 Order. See Krieger v. Department of Justice, No. 98-1703, slip op. (D.D.C. March 30, 2002). To briefly summarize, Plaintiff's original complaint, filed on July 8, 1998, included nine separate counts, all of which arose out of his allegations that Kathlynn G. Fadely, Plaintiff's former supervisor at the Department of Justice ("DOJ"), had disparaged and continued to disparage Plaintiff's performance and abilities as a lawyer. Compl. ¶¶ 16-30. In Counts I through VI, Plaintiff raised common law tort claims against Fadely. Count VII raised a constitutional tort claim against Fadley. In Count VIII, Plaintiff argued that DOJ had violated his rights under the Privacy Act of 1974, 5 U.S.C. § 552a. In Count IX, Plaintiff contended that the United States had acted in a negligent manner in violation of the Federal Tort Claims Act ("FTCA").
On October 7, 1998, the Court granted the United States' motion to substitute the United States for Fadely as Defendant for each of the six common law tort claims that Plaintiff had raised against her, because the Attorney General had certified that Fadley had been acting within the scope of her employment during the incidents in quesion. Subsequently, but before the filing of any responsive pleading, Defendants moved the Court to dismiss each of Plaintiff's claims. The Court dismissed Plaintiff's lawsuit in its entirety on August 9, 1999.
Plaintiff appealed this Court's decision to the United States Court of Appeals for the District of Columbia Circuit, and, on May 5, 2000, the appellate court issued an opinion affirming in part and reversing in part. See Krieger v. Fadely, 211 F.3d 134 (D.C. Cir. 2000). The Court of Appeals affirmed the dismissal of eight of the counts, but reversed with respect to Count VIII. Id. at 136. That single claim was reinstated and the matter was referred back to this Court for resolution. Id. With respect to the common law tort claims against Fadley, the Court of Appeals held that, although Plaintiff should have had the opportunity to challenge the substitution of the United States for Fadley, Plaintiff had waived his opportunity by failing to raise any objection to Fadley's certification, and the resulting substitution, in the eleven months between the substitution and the dismissal of his suit. Id. at 135
On July 7, 2000, this Court issued a scheduling order in which it required Defendants to file an answer to the reinstated portion of Plaintiff's complaint no later than July 21, 2000. See Sched. Order, July 7, 2000 [26], at 1. That same Order initiated the discovery period in this case. See id. Ten days before that deadline, and before Defendant had submitted a responsive pleading of any kind, Plaintiff filed a nine-count amended complaint that was almost identical to the original. See Am. Compl. [27]. While some of the factual allegations were different, the amended complaint raised the same six common-law tort claims against Fadely, and the same constitutional tort claim against Fadely. See id. ¶¶ 44-91.
On November 17, 2000, this Court denied Plaintiff's motion to amend. The Court determined that Plaintiff's renewed tort claims brought against Fadely were barred because the District Court had already considered the question of whether the United States could properly be substituted for Fadley under the Federal Employee Liability Reform and Tort Compensation Act of 198, 28 U.S.C. § 2679(d)(1) (the Westfall Act), and the Circuit Court had affirmed its decision. Krieger v. Department of Justice, No. 98-1703, slip op. at 9-11 (D.D.C. Nov. 17, 2000); Krieger, 211 F.3d at 136. The Court also denied Plaintiff's attempt to amend his FTCA claim (Count IX) against the United States, and dismissed his motion for reconsideration of the Court's dismissal of his constitutional tort claim (Count VII). Krieger, No. 98-1703, slip op. at 11-15 (D.D.C. Nov. 17, 2000). The Court did, however, permit Plaintiff to amend his Privacy Act claim. At that point, Count VIII against Fadley was Plaintiff's only live claim.
The following March, Plaintiff filed another motion to amend his complaint to include additional claims or parties based upon evidence he alleges was revealed through discovery he received in October of 2000. See Mot. to Am. Compl., Ex. 1 (Second Am. Compl.) [72]. The Court notes that it is clear from this Second Amended Complaint that Plaintiff relies on the same factual predicate for each of his legal claims. See generally Second Am. Compl. (incorporating ¶¶ 1-51, which set forth Plaintiff's factual allegations, into each of Plaintiff's legal claims). Plaintiff sought to add Gary W. Allen, Fadley's Supervisor, as a Defendant in Counts II, V, and VII, and also sought to amend both his Privacy Act claims (Count VIII), and his FTCA claim (Count IX). Defendant did not object to allowing Plaintiff to amend his Privacy Act claims, but did object to the other proposed amendments. The Court ruled on Plaintiff's motion on March 30, 2002, and held that Plaintiff would not be permitted to add two common law tort claims (Counts II and V) against Allen if Allen received certification from the Attorney General pursuant to 28 U.S.C. § 2679 that he was acting within the scope of his employment during the incidents raised by Plaintiff. The Court further held that Plaintiff would not be permitted to add a First Amendment claim against Fadley, but that Plaintiff would be permitted to amend Count VII to add a First Amendment claim against Allen. Finally, the Court determined that its decision on whether to allow Plaintiff to amend Count IX would be dependent on whether Allen received certification. On July 1, 2002, Defendants notified the Court that Allen had received certification. See Def.'s Resp. to Court's Order [95]. Accordingly, Plaintiff was not permitted to amend Counts II and V.
On October 7, 2002, Plaintiff filed a motion requesting that the Court reconsider its Order of March 30, 2002 in two respects. See Pl.'s Mot. to Reconsider [106]. Plaintiff sought permission to amend Counts II and V, and to challenge the Attorney General's certification of Allen. Upon examination of Plaintiff's motion, the Court determined that Plaintiff would be permitted to challenge Allen's certification. See Krieger, No. 98-1703, order (D.D.C. March 31, 2004) [112]; id. slip op. (D.D.C. April 2, 2004) . The Court also held that if the certification was ultimately deemed to be proper, Plaintiff would not be permitted to amend Counts II and V. On April 15, 2005, Plaintiff filed a motion, opposed by Defendants, in which he requested that the Court stay the briefing schedule for challenging Allen's certification, and requested additional discovery with respect to the certification. Pl.'s Mot. to Stay Briefing Schedule [114]; Defs.' Opp. to Pl.'s Mot. to Stay Briefing Schedule [115]. On May 13, 2004, the Court amended the briefing schedule to allow Plaintiff more time to assemble his arguments against Allen's certification, but denied Plaintiff the opportunity to conduct additional discovery. See Order, May 13, 2004 [116]. In doing so, the Court remarked that "Plaintiff has already had ample time for discovery in this suit, and was well aware of the management hierarchy of his former employer during that discovery process." Id.
On June 24, 2004, Plaintiff filed his Motion to Decertify Defendant Allen [118], which has been fully briefed. The Court now considers the merits of Plaintiff's certification motion, and finds that Plaintiff has failed to demonstrate that certification was improper.
II. LEGAL STANDARD
In 1988, the Supreme Court issued its opinion in Westfall v. Irwin, 484 U.S. 292 (1988), holding that Federal employees would be absolutely immune from state tort liability if they were acting within the scope of their employment, and those actions were discretionary in nature. Id. at 300. Congress subsequently passed the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d) (2000), commonly known as the Westfall Act, which eliminated the requirement that the federal employee's actions be discretionary. Rather, the Westfall Act provided for immunity "[u]pon certification by the Attorney General 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. . . ." Id. § 2679(d)(1). In the event of such certification, "any civil action . . . commenced upon such a claim in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant." Id. The Supreme Court has stated that the Westfall Act confers immunity on federal officials "by making an FTCA action against the Government the exclusive remedy for torts committed by [such] employees in the scope of their employment." United States v. Smith, 499 U.S. 160, 163 (1991).
The Supreme Court subsequently held that the government's scope of employment certification under the Westfall Act is judicially reviewable. See Stokes v. Cross, 327 F.3d 1210, 1213 (D.C. Cir. 2003) (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995)). This Circuit had reached a similar finding earlier that same year in Kimbro v. Velten, 30 F.3d 1501 (D.C. Cir. 1994). In considering "how much evidentiary weight the court should afford the Attorney General's certification," id. (emphasis omitted), the Circuit Court adopted the Third Circuit's reasoning in Melo v. Hafer, 13 F.3d 736 (3d Cir. 1994), finding that the certification is entitled to " prima facie effect," obliging a "plaintiff to come forward after reasonable discovery with evidence supporting his allegations both as to scope and as to the merits." Id. at 1509 (citations omitted). The D.C. Circuit agreed with the Third Circuit's view that "[i]f there is a material dispute as to the scope [of employment] issue the district court must resolve it in an evidentiary hearing." Id.
More recently, this Circuit "has reiterated the Kimbro approach since the Supreme Court's decision in Lamagno, stating that 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. . . .'" Stokes, 327 F.3d at 1214 (quoting Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995)).
In Stokes, the Circuit Court noted that "[o]ther 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." Stokes, 327 F.3d at 1214 (quoting Lawson v. United States, 103 F.3d 59, 60 (8th Cir. 1996)). The Stokes court further held that "[b]ecause the plaintiff cannot discharge 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." Stokes, 327 F.3d at 1214 (citing Singleton v. United States, 277 F.3d 864, 871 (6th Cir. 2002)).
Accordingly, once the government has made its prima facie showing by certifying that an individual defendant was working within the scope of his or her employment, the plaintiff has the "burden . . . to raise a material dispute regarding the substance of [the government's] determinations by alleging facts that, if true, would establish that [the] defendants were acting outside the scope of their employment." Stokes, 327 F.3d at 1215 (citing Kimbro, 30 F.3d at 1508-9). In order "to obtain discovery and an evidentiary hearing," a plaintiff must have "alleged sufficient facts that, taken as true, would establish that the defendants' actions exceeded the scope of their employment." Stokes, 327 F.3d at 1215; see also Schneider v. Kissinger, 310 F. Supp. 2d 251, 264 (D.D.C. 2004) ("This certification is not conclusive, and a federal court examines the issue independently. In general, the plaintiffs bear the burden of producing evidence that a defendant was acting outside the scope of his employment." (citations omitted)).
Under District of Columbia law, which governs the question of scope of employment in this jurisdiction, the Court looks to the Restatement (Second) of Agency § 228. See Stokes, 327 F.3d at 1215; Haddon, 68 F.3d at 1423-24. The Restatement specifies that
conduct of a servant is within the scope of employment if, but only if: (a) it is the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) 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 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." Id. § 228(2). The District of Columbia "excludes from the scope of employment all actions committed `solely for [the servant's] own purposes.'" Stokes, 327 F.3d at 1216 (quoting Weinberg v. Johnson, 518 A.2d 985, 990 (D.C. 1986) (footnote omitted)). Furthermore, "the 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.'" Stokes, 327 F.3d at 1216 (quoting Weinberg, 518 A.2d at 992 (citations omitted)).
This Circuit has stated that "[n]ot every complaint will warrant further inquiry into the scope-of-employment issue," noting that in the Sixth Circuit a "district court had not erred in dismissing [a] claim without a hearing where the plaintiff `did not allege any facts in his complaint or in any subsequent filing . . . that, if true, would demonstrate that [the defendant] had been acting outside the scope of his employment.'" Stokes, 327 F.3d at 1216 (quoting Singleton, 277 F.3d ast 871); see also Schneider, 310 F. Supp. 2d at 264 n. 14 (noting that where the district court "accepts as true the plaintiffs' factual assertions regarding the parameters of [the defendant's] job role and duties, there is no need for an evidentiary hearing to resolve this legal issue." (emphasis in original)). Another judge on this Court has ruled that discovery is only appropriate in certain circumstances. See Koch v. United States, 209 F. Supp. 2d 89, 92-93 (D.D.C. 2002) (noting that no discovery or evidentiary hearing is necessary when, "[e]ven assuming that [plaintiff's] factual allegations are true, without requiring him to produce evidence to support those allegations, plaintiff . . . fails to show that [the defendant] was acting outside the scope of his employment.") . In Koch, the Court stated that "[o]nly if the district court concludes that there is a genuine issue of fact material to the scope-of-employment issue should the federal employee be burdened with discovery and an evidentiary hearing." Id. at 92 (quoting Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997)).
III. DISCUSSION
It is clear from an examination of the materials in this case that Plaintiff's challenge to Defendant Allen's certification must fail, and that no additional discovery or evidentiary hearing is necessary for the Court to make this determination. The Government has certified that Defendant Allen was acting within the scope of his employment for purposes of Plaintiff's suit. Accordingly, the burden shifts to Plaintiff to present "specific facts rebutting the certification." Stokes, 327 F.3d at 1214.
Plaintiff has plainly failed to meet this burden. Plaintiff makes limited factual allegations about Defendant Allen's conduct in his Second Amended Complaint. Indeed, the sum total of Plaintiff's allegations with respect to Defendant Allen are that Allen took part in the issuance of a press release addressing a finding that the Unites States was not liable for the crash of Delta Flight 191, that improperly disclosed information about Plaintiff, see Second Am. Compl. ¶¶ 26-27, and that Allen was involved in some unspecified way in impeding Plaintiff's opportunity to give computer animation presentations related to the crash of Delta Flight 191, see id. ¶¶ 34-35. Plaintiff acknowledges that Allen "supervise[d] Fadley . . . and has national supervisory authority over all aviation and admiralty related FTCA litigation," but alleges that Allen's challenged actions "are not the type which [he] is employed to perform at Defendant DOJ, involve no policy-making or discretionary function, and serve no cognizable interests of Defendant United States." Id. ¶ 50.
Of course, as explained in Part II, supra, the Westfall Act specifically eliminated any requirement that a defendant's actions be discretionary.
Plaintiff maintains that he is entitled to additional discovery with respect to his allegations regarding Defendant Allen. Pl.'s Mot. to Decertify Defendant Allen at 2. However, the Court finds that no additional discovery is warranted. As a preliminary matter, Plaintiff was granted a full opportunity for discovery earlier in this case. In evaluating Plaintiff's initial request for additional discovery with respect to Defendant Allen, see Pl.'s Mot. to Stay Briefing Schedule, the Court explained that "Plaintiff has already had ample time for discovery in this suit, and was well aware of the management hierarchy of his former employer during that discovery process." Order, May 13, 2004 [116]. Indeed, Defendants have not disputed any of Plaintiff's factual allegations with respect to Defendant Allen. See Def.'s Opp. to Pl.'s Mot. at 5 n. 2 ("[D]efendants assume the truth of the facts pleaded in the complaint and those facts alleged in Plaintiff's motion."). Furthermore, Plaintiff's claims and constitutional allegations with respect to Defendant Allen's actions indicate that Plaintiff gained the information on which he relies for his claims against Allen as a result of discovery in October 2000. It is clear, then, that the discovery already provided to Plaintiff has formed the basis for Plaintiff's Second Amended Complaint in which he includes Defendant Allen in this suit. In light of these circumstances, the Court finds that Plaintiff has been granted sufficient opportunity to conduct discovery, and that there exists no material factual dispute to be resolved through another round of discovery and an evidentiary hearing. See Stokes, 327 F.3d at 1214; Kimbro, 30 F.3d at 1509.
The Court notes that, as a practical matter, the cases permitting discovery are procedurally distinct from the instant suit. Generally, the government's certification that a defendant's actions were within the scope of his or her employment would come at the beginning of the suit, before any discovery at all could have taken place. See, e.g., Koch, 209 F. Supp. 2d 98; see also Stokes, 327 F.3d 1210. In contrast, Plaintiff here has had a full opportunity for discovery, and is merely seeking to continue his pursuit of threads of that discovery. This circumstance is significantly less compelling to the Court than that of a plaintiff who has had no opportunity for discovery at the point that the government has moved to dismiss a suit based on its certification of an employee.
Furthermore, no discovery or evidentiary hearing is necessary if Plaintiff has failed to "allege sufficient facts that, taken as true, would establish that [Allen's] actions exceeded the scope of [his] employment." Stokes, 327 F.3d at 1215. Considering Plaintiff's factual allegations in light of the applicable legal standards, Plaintiff has failed to present the Court with facts that, if substantiated, would indicate Defendant Allen was acting outside the scope of his employment. Plaintiff's alleges that Defendant Allen was acting beyond the scope of employment when the Department of Justice issued a press release on September 1, 1989 about the Delta Flight 191 litigation containing inaccurate information about Plaintiff's employment. Plaintiff focuses on the fact that the press release contained statements that Plaintiff was "formerly of the Justice Department," and "was of counsel for a portion of the proceedings." Second Am. Compl. ¶ 27. Plaintiff's complaint was that he had worked on the case extensively and had resigned near the end of the trial to work for a private law firm, but had made himself available to assist in the trial should the Department of Justice so request.
The Court finds Plaintiff's position to be untenable. The Restatement (Second) of Agency would require, in relevant part, that Allen's actions would be of the "kind he is employed to perform," and be "actuated, at least in part, by a purpose to serve the master." In light of the fact that Allen had "national supervisory authority over all aviation and admiralty related FTCA litigation," Second Am. Compl. ¶ 50, Allen's work on an agency press release addressing a judicial determination that the United States was not liable for a plane crash clearly meets the relevant criteria. Even if the inclusion of inaccurate information about Plaintiff's role in the litigation constitutes an injurious tort, it can hardly be said that Allen's work on an agency press release constitutes an action "committed `solely for [the servant's] own purposes.'" Stokes, 327 F.3d at 1216 (quoting Weinberg, 518 A.2d at 990). Indeed, "the 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.'" Stokes, 327 F.3d at 1216 (quoting Weinberg, 518 A.2d at 992).
Considering Plaintiff's second allegation, that Allen somehow impeded Plaintiff's ability to give computer animation presentations related to the crash of Delta Flight 191, the Court finds it similarly apparent that Plaintiff has presented nothing to indicate Allen's certification is improper. Plaintiff indicates that the Government had the computer animation developed (and paid $200,000 for it) as part of the Government's case in the trial determining liability for the crash of Delta Flight 191. See Second Am. Compl. ¶ 12. However, Plaintiff appears to claim in an unspecified way that Allen hampered Plaintiff's opportunities to publicly present this government-produced computer animation at conferences after Plaintiff had left the agency's employ. Under the same rationale as the Court employs examining Plaintiff's first allegation with respect to the press release, the Court cannot find any evidence in Plaintiff's factual assertions that would indicate that any actions undertaken by Defendant Allen with respect to the use of a computer animation, paid for and developed in the course of government litigation for which Allen was responsible, would fall outside of the scope of Allen's employment. Plaintiff presents no facts to the contrary, and accordingly has failed to meet his "`burden of coming forward with specific facts rebutting the certification. . . .'" Stokes, 327 F.3d at 1214 (quoting Lawson, 103 F.3d at 60).
These same claims have also been included within a framework of violations of Constitutional rights. The legal analysis is the same. All of Plaintiff's allegations relating to Allen are tied to the Delta litigation and the disparate perceptions of the importance of Plaintiff's role in the success of the litigation. Without ruling on the question of whether any of Allen's actions were appropriate or not, the Court notes that Defendant Allen was the supervisor with ultimate responsibility for the Delta litigation at the time. The Court finds that Allen could be foreseen to have a continuing interest in having the Department of Justice credited with its success, rather than an attorney now in private practice.
IV. CONCLUSION
After an examination of the parties' filings and the relevant law, the Court finds that Plaintiff has not presented the Court with any allegations or evidence that undermine the Government's certification that Defendant Allen was acting within the scope of employment with respect to the events addressed in Plaintiff's suit. Consequently, the Court shall deny Plaintiff's Motion to Decertify Defendant Allen, and Plaintiff will not be permitted to amend Counts II and V of this suit.
In light of this ruling, the Court notes that the only remaining issues pending in this suit are Defendants' Motion for Summary Judgment with respect to Plaintiff's Privacy Act claim (Count VIII) [83], Defendant's Motion to Dismiss or in the Alternative for Summary Judgment with respect to Plaintiff's Count VII against Defendant Allen [96], and Defendants' Renewed Opposition to Plaintiff's Motion to Amend Count IX [97]. See Joint Status Report [124]. The Court will address these final outstanding issues in a separate Memorandum Opinion and Order.