Burgess v. John F. Kennedy Center for the Performing Arts ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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JOSEPH BURGESS III, )
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Plaintiff, )
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v. ) Civil Action No. 1:19-cv-1834 (TSC)
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THE JOHN F. KENNEDY CENTER )
FOR THE PERFORMING ARTS, et al. )
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Defendants. )
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MEMORANDUM OPINION
Plaintiff Joseph Burgess brings this tort action against Defendants John F. Kennedy
Center for the Performing Arts, and its employee, Karles Jackson. The United States contends
that it should be substituted as the defendant under 28 U.S.C. § 2679(d) and moves to dismiss
Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction. (ECF No. 7.) For the reasons set forth below, the court will GRANT the
United States’ motion to dismiss.
I. BACKGROUND
In summer 2018, the hit musical Hamilton was being performed at the Kennedy Center.
(See ECF No. 1 (“Compl.”).) As the show’s run was coming to a close, Burgess, a building
manager for the Kennedy Center, asked another employee, Ron Stewart, for the Kennedy
Center’s poster advertising the show. (Compl. ¶¶ 8–10.) Stewart gave Burgess one. (Id. ¶¶ 11,
22.) Burgess then asked Hamilton staff for the cast to autograph the poster, which he alleges is
common practice. (Id. ¶¶ 13, 15–23.) The next month, however, Stewart told Burgess that the
Kennedy Center wanted the poster back, and Burgess returned it. (Id. ¶¶ 25–26.)
In September, the Director of Office Safety and Security for the Kennedy Center,
Defendant Karles Jackson, emailed various manager-level Kennedy Center employees,
informing them that Burgess had “used his official Federal position for personal gain and
possible profit,” that there were several complaints about him from productions, and that Burgess
would no longer be allowed backstage. (Id. ¶¶ 29–30; see also Ex. 1.) Burgess’ supervisor
informed him of this restriction. (Id. ¶¶ 34–35.) Jackson later sent Burgess and his supervisors
an email, with the subject “Security/Criminal Incident,” informing Burgess of some procedures
for an inquiry into the “reported theft.” (Id. at Ex. 4.) The email stated that an incident report
would be sent to the Kennedy Center’s general counsel’s office and vice presidents of facilities
and operations and could be reported to U.S. Park Police. (Id. ¶¶ 42–44.) Over the following
months, Jackson allegedly repeated his assertions that Burgess had stolen the poster to other
Kennedy Center employees. (Id. ¶¶ 45–47.)
Burgess brings six claims against the Kennedy Center and Jackson: defamation per se
(Counts 1–4), harassment (Count 5), and negligent infliction of emotional distress (Count 6). He
also brings two claims against the Kennedy Center alone for hostile work environment (Count 7)
and respondeat superior (Count 8).
II. LEGAL STANDARD
Federal courts are of limited jurisdiction and “may not exercise jurisdiction absent a
statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).
“Limits on subject-matter jurisdiction ‘keep the federal courts within the bounds the Constitution
and Congress have prescribed,’ and those limits ‘must be policed by the courts on their own
initiative.’” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999)). The law presumes that “a cause lies outside [the
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court’s] limited jurisdiction” unless the party asserting jurisdiction establishes otherwise.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Thus,
plaintiffs bear the burden of establishing jurisdiction by a preponderance of the evidence. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F.
Supp. 2d 59, 63 (D.D.C. 2002).
In evaluating a motion to dismiss for lack of jurisdiction under Federal Rule of Civil
Procedure Rule 12(b)(1), a court must “assume the truth of all material factual allegations in the
complaint and ‘construe the complaint liberally, granting plaintiff[s] 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) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). But the
court “need not accept factual inferences drawn by plaintiffs if those inferences are not supported
by facts alleged in the complaint, nor must the Court accept [plaintiffs’] legal conclusions.”
Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United
States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). A motion to dismiss under 12(b)(1) “is not
limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.
1986), vacated on other grounds, 482 U.S. 64 (1987). And “a court may consider such materials
outside the pleadings as it deems appropriate to resolve the question [of] whether it has
jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000) (citing, inter alia, Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
1992)).
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III. ANALYSIS
A. Substitution of the United States
Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28
U.S.C. § 2679 (the “Westfall Act”), federal employees have absolute immunity from common-
law tort claims arising from acts they take within the scope of their employment. See Osborn v.
Haley, 549 U.S. 225, 229 (2007); Wuterich v. Murtha, 562 F.3d 375, 377 (D.C. Cir. 2009).
When a federal employee is named in a tort suit, the Attorney General can certify under the
Westfall Act that the employee was acting within the scope of his employment during the alleged
incident. 28 U.S.C. § 2679(d). If such certification is made, the employee can be dismissed
from the case and the United States substituted as the sole defendant. See, e.g., Simpkins v.
District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997).
Here, the Attorney General has made the Westfall certification, finding that Jackson’s
conduct was within the scope of his employment. (ECF No. 7-2.) The certification is not
conclusive, however. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). Rather, it is
prima facie evidence that Burgess can rebut by “alleg[ing] sufficient facts that, taken as true,
would establish that the defendant[’s] actions exceeded the scope of [his]
employment.” Wuterich, 562 F.3d at 381 (quoting Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.
Cir. 2003) (quotation marks omitted)); see also Council on Am. Islamic Relations v. Ballenger,
444 F.3d 659, 662 (D.C. Cir. 2006). Burgess bears the burden of showing that Jackson was
acting outside the scope of his employment. That question is governed by D.C. law, which
follows the Restatement (Second) of Agency approach. See Ballenger, 444 F.3d at 663
(citing Stokes, 327 F.3d at 1214). Under this approach, the
[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 perform; (b) it occurs substantially within
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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.
Id. The test is an objective one, based on all the facts and circumstances of the case. Id. It
focuses on the “underlying dispute or controversy, not on the nature of the tort[.]” Id. at 664
(quoting Weinberg v. Johnson, 518 A.2d 985, 992 (D.C. 1986)).
Burgess fails to meet his burden. To determine whether the alleged conduct is the kind of
conduct Jackson was employed to perform, the court must determine “whether the [conduct]—
not the allegedly defamatory sentence—was the kind of conduct [the employee] was employed
to perform.” Id. Burgess acknowledges that Jackson’s job included reporting and discussing
security-related matters with Kennedy Center officials (ECF No. 8 (“Pl. Br.”) at 5–6), and
concedes that Jackson made the statements “as part of his official duties as an employee” of the
Kennedy Center. (Compl. ¶ 2; see also id. ¶¶ 6, 29, 52.) But he contends that Jackson exceeded
the scope of his employment when he “intentionally and with malice used legal conclusions to
make false statements” about Burgess. (Pl. Br. at 5.) Burgess further contends that “[i]t is
doubtful that [Jackson’s] employer . . . granted him the authority to intentionally make false
statements in the reports he files as part of his duties.” (Id.) But this argument improperly
focuses on the “wrongful character of the act”—the falsity of the statements—rather than the
“type of act that gave rise to the tort”—reporting security-related matters to other Kennedy
officials. See Beard v. Seals, 75 F. Supp. 3d 204, 207 (D.D.C. 2014) (quoting Jacobs v. Vrobel,
724 F.3d 217, 221–222 (D.C. Cir. 2013)).
Burgess raises no arguments regarding the last three factors, so the court will not address
them. (See generally Pl. Br.)
Therefore, court finds that Burgess failed to rebut the Government’s certification under
D.C. law, and that Jackson acted within the scope of his employment. Accordingly, the United
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States must be substituted as the sole defendant in this FTCA action. See Wuterich, 562 F.3d at
380 (after a Westfall substitution in a tort case, the suit is governed by the Federal Tort Claims
Act).
B. FTCA
The Federal Tort Claims Act (“FTCA”) is the exclusive remedy for tort claims against
government employees acting within the scope of their employment. See Simpkins, 108 F.3d at
371. Burgess acknowledges that the Kennedy Center is a federal agency, and that Jackson is a
Kennedy Center employee. (Compl. ¶ 1.) Burgess contends, however, that he has brought only
common law tort claims under the court’s diversity jurisdiction, rather than FTCA claims. (Pl.
Br. at 8.) But an FTCA action against the United States is the exclusive remedy for tort claims
against the Kennedy Center and its employees acting within the scope of their employment. 1 See
Whittaker v. Court Servs. & Offender Supervision Agency for D.C., 401 F. Supp. 3d 170, 178
(D.D.C. 2019) (holding diversity jurisdiction is not a basis for jurisdiction over a federal
agency); see also Polcari v. John F. Kennedy Ctr. for Performing Arts, 712 F. Supp. 230, 231–
32 (D.D.C. 1989) (rejecting plaintiff’s invocation of diversity jurisdiction for tort claims against
the Kennedy Center). Thus, the court lacks diversity jurisdiction in this case and an action under
FTCA is the only means by which Burgess may bring his tort claims.
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Burgess purports to bring harassment and hostile work environment claims based on the
defamatory statements (Counts 5 & 7). While these claims use the language of employment
discrimination, Burgess contends all of his claims are common law tort claims. (Pl. Br. at 8.)
Moreover, he did not respond to the United States’ argument that all of his claims are libel and
slander claims rather than employment discrimination claims. (See generally Pl. Br.; ECF No. 7-
1 (“U.S. Br.”) at 6.) The court therefore treats the argument as conceded. See Hopkins v.
Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F.
App’x 8 (D.C. Cir. 2004).
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The FTCA is a limited waiver of the United States’ sovereign immunity “rendering the
United States amenable to suit for certain, but not all, tort claims.” Rashad v. D.C. Central
Detention Facility, 570 F. Supp. 2d 20, 23 (D.D.C. 2008) (citing Richards v. United States, 369
U.S. 1, 6 (1962)). The FTCA excepts tort claims “arising out of . . . libel [or] slander,” 28 U.S.C.
§ 2680(h), from the United States’ sovereign immunity waiver. See Ballenger, 444 F.3d at 666.
Burgess’ claims are based on Jackson’s allegedly defamatory statements, and therefore arise out
of libel or slander. See Edmonds v. United States, 436 F. Supp. 2d 28, 35 (D.D.C. 2006)
(“Claims, no matter how they are described by a plaintiff, based on dissemination of defamatory
information . . . are barred by the libel/slander exemption.” (citing Kugel v. United States, 947
F.2d 1504 (D.C. Cir. 1991))). Therefore, Burgess’ claims are barred under the FTCA, and this
court lacks subject matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the court will grant the United States’ motion to dismiss.
A corresponding Order will be issued separately.
Date: April 27, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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