Linda Jacobs v. Michael Vrobel , 724 F.3d 217 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2013 Decided July 26, 2013
No. 12-5107
LINDA JACOBS,
APPELLANT
v.
MICHAEL J. VROBEL,
APPELLEE
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
2
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
3
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 (2007).
1
The allegations in count two appear to refer to GSA, not
Vrobel. Jacobs complains that “Defendant supervisors had no
intention to see the Plaintiff depart from her position at GSA,”
“they purposely lied to the potential employer,” “they were
interfering with Plaintiff’s ability to change jobs” and “[t]hey knew
that if she was given a bad reference that would put an end to the
new potential employer’s interest.” Compl. ¶¶ 28-31 (JA 5)
(emphases added). We assume this is a series of typographical
errors, given that Jacobs did not name GSA as a defendant.
4
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.
5
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. 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
6
reasonable inference that the defendant is liable for
the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (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).
7
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 standard in many states and
D.C., and because the FTCA and the Westfall Act
incorporate the relevant state’s test, tort claims
against federal government employees often proceed
against the Government itself under the FTCA rather
than against the individual employees under state
law.
Harbury v. Hayden, 522 F.3d 413, 422 n.4 (D.C. Cir. 2008)
(citation omitted).
Jacobs first argues that Vrobel’s conduct fails the first
prong of the Restatement test because it is not “of the kind
[Vrobel was] employed to perform.” RESTATEMENT
§ 228(1)(a). In determining whether Vrobel’s conduct
satisfies this prong, District law requires that we focus on the
type of act Vrobel took that allegedly gave rise to the tort, not
the wrongful character of that act. See Ballenger, 444 F.3d at
664 (“The proper inquiry in this case 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.” (quotation marks omitted)). For example,
in Ballenger, we held that a congressman acted within the
scope of his employment when he allegedly defamed the
plaintiff during a telephone call with the press because
8
“[s]peaking to the press during regular work hours in response
to a reporter’s inquiry falls within the scope of a
congressman’s authorized duties.” Id. (quotation marks
omitted). In evaluating this prong of the Restatement, we
explained, “[t]he appropriate question . . . is whether that
telephone conversation—not the allegedly defamatory
sentence—was the kind of conduct [the congressman] was
employed to perform.” Id.; see also Rasul v. Myers, 512 F.3d
644, 656-57 (D.C. Cir.) (“To be ‘of the kind’ of conduct an
individual is employed to perform, the Restatement explains
that the ‘conduct must be of the same general nature as that
authorized, or incidental to the conduct authorized.’” (quoting
RESTATEMENT § 229(1)), vacated on other grounds, 555 U.S.
1083 (2008).
Vrobel’s conduct easily satisfies this prong. Jacobs’s
theory of recovery in both counts of her complaint is that
Jacobs (1) applied for employment outside GSA’s contracting
division as well as outside GSA; (2) Vrobel answered
inquiries from prospective employers about Jacobs; and (3)
due to Vrobel’s negative response, the employers did not hire
Jacobs. See Comp. ¶¶ 23, 29 (JA 4-5). The type of act that
Vrobel allegedly took here—responding to a prospective
employer’s request for a reference—is plainly “the kind of
conduct [Vrobel] was employed to perform.” Ballenger, 444
F.3d at 664.
Jacobs also contends that Vrobel’s conduct fails the third
prong of the Restatement test because it was not “actuated, at
least in part, by a purpose to serve the master.” RESTATEMENT
§ 228(1)(c). To satisfy this prong, the employee must have
had an “intention to perform [the conduct in question] as a
part of or incident to a service on account of which he [was]
employed.” Schechter v. Merchants Home Delivery, Inc., 892
A.2d 415, 428 (D.C. 2006) (emphasis added and quotation
marks omitted). This requires only a “partial desire to serve
9
the [employer].” Ballenger, 444 F.3d at 665 (emphasis
added). Again, we examine “the underlying dispute or
controversy, not . . . the nature of the tort.” Johnson, 518 A.2d
at 992. Further, the test “is broad enough to embrace any
intentional tort arising out of a dispute that was originally
undertaken on the employer’s behalf.” Id. (quotation marks
omitted). Finally, because the focus of our analysis is on “the
state of the servant’s mind[,] . . . external manifestations are
important only as evidence.” Schechter, 892 A.2d at 428(quotation marks omitted).
Conclusory allegations aside, we cannot infer from
Jacobs’s complaint that Vrobel did not intend, “at least in
part, . . . to serve” GSA by fielding prospective employers’
requests for a reference and allegedly defaming Jacobs while
doing so. Indeed, her allegations contradict her position.
Jacobs alleges that Vrobel answered the reference calls in his
role as her supervisor at GSA. See Compl. ¶ 20 (noting “the
new job[s] disappeared after the [prospective employer]
contacted GSA and Plaintiff’s supervisor” (emphasis added));
Compl. ¶ 23 (“the potential employer calls the GSA for a
reference” (emphasis added)). Nor does Jacobs contend that
responding to reference calls from prospective employers is
not an act undertaken on GSA’s behalf. While Jacobs alleges
that Vrobel defamed her during the calls, District law
requires, as noted earlier, that we focus on the “underlying
dispute or controversy” (the reference call), not “the nature of
the tort” (the defamatory statement). Johnson, 518 A.2d at
992. Responding to a reference call is an act plainly intended
to benefit his employer and, accordingly, we conclude that
Vrobel intended, at least in part, to serve GSA when he
allegedly defamed Jacobs during the call.
Jacobs also alleges, apparently in an effort to show
Vrobel’s state of mind, that he gave negative references to
prospective employers because he “had no intention to see the
10
Plaintiff depart from her position at GSA.” Compl. ¶ 28 (JA
5); see also Compl. ¶¶ 29-31 (JA 5). The allegation is not
only conclusory, however, but also suggests that Vrobel’s
negative reference was given in an effort to aid his employer
by keeping Jacobs, who claims to be a top-flight employee,
employed with GSA.
In addition, Jacobs’s case is distinguishable from the
principal precedent on which Jacobs relies: Stokes v. Cross,
327 F.3d 1210 (D.C. Cir. 2003), and Majano v. United States,
469 F.3d 138 (D.C. Cir. 2006). In Stokes, the plaintiff alleged
that his superiors intentionally injured his professional
reputation by filing a false adverse incident report, destroying
critical exculpatory evidence and threatening an employee in
an attempt to force him to make a false statement. 327 F.3d at
1212. After the Attorney General certified that the
defendants’ actions fell within the scope of their employment,
the district court dismissed the complaint, reasoning that
Stokes had “given no evidence to suggest that [the Attorney
General’s delegate was] not able to make the certification.”
Id. (quotation marks omitted). We reversed because the
district court erroneously required the plaintiff to show the
delegate lacked authority to issue the certification; the district
court should have decided whether the plaintiff had alleged
sufficient facts to show the defendants acted outside the scope
of their employment. Id. at 1214-15. We further held that,
based on allegations of “destroying critical evidence,
preparing and submitting false affidavits by use of threat and
coercion, and engaging in other criminal acts,” the plaintiff
had pleaded sufficient facts to support his allegation that the
defendants acted for their own purpose to destroy the
plaintiff’s reputation. Id. at 1216.
Here, in contrast, the district court did not give
“conclusive weight to the [delegate’s] scope-of-employment
certifications.” Id. Instead, it evaluated for itself whether,
11
based on Jacobs’s allegations, Vrobel had acted in the scope
of his employment. Mem. Op. at 4, Jacobs v. Vrobel, No. 11-
cv-953 (D.D.C. Mar. 8, 2012) (“The government’s
certification, however, is not conclusive.”). Moreover, unlike
here, Stokes’s allegation of malice was supported by specific
allegations of a false report, coercion and destruction of
evidence. Stokes, 327 F.3d at 1212, 1216.
In Majano, a co-worker allegedly assaulted the plaintiff
when the plaintiff attempted to prevent the co-worker from
entering the employer’s building. 469 F.3d at 140. After
shoving the plaintiff to obtain entry, the co-worker then
injured her by grabbing and repeatedly yanking the plaintiff’s
lanyard. Id. In reversing the district court’s grant of summary
judgment to the defendant, we concluded, first, that the initial
assault was within the scope of the co-worker’s employment
because it was animated by a desire to serve the employer (by
gaining entrance to the building). The subsequent assault,
however, was “violent and unprovoked and took place after
[the defendant] had walked approximately 30-feet down a
hallway well inside the building” and was thus unrelated to
the original provocation or any work-related function. Id. at
142.
Jacobs’s suit is factually distinct from Majano. There, the
defendant committed a violent tort unrelated to whatever
business for her employer she was attempting to attend to by
entering the building. Here, Jacobs merely alleges that Vrobel
performed a legitimate work-related function—fielding
employment reference calls—in an impermissible manner.
Finally, we note that Jacobs’s complaint includes several
allegations against Vrobel that have nothing to do with her
claims. Specifically, Jacobs complains that Vrobel (1) gave
her too much work; (2) removed files from her desk; (3)
prohibited her from speaking with co-workers about work-
related problems; and (4) spread rumors about her. Compl.
12
¶ 10 (JA 2-3). But the basis of both counts of her complaint is
that Vrobel allegedly harmed her by making negative
statements about her to prospective employers. Whether
Vrobel was acting outside the scope of his employment in
taking the four actions alleged above is irrelevant because
they do not relate to Jacobs’s claims. See Iqbal, 556 U.S. at
668 (allegations of complaint “against defendants who are not
before us” irrelevant in determining whether complaint
survives motion to dismiss). Indeed, Jacobs characterizes the
allegations as examples of a “hostile workplace
environment”—plainly, not one of her causes of action.
Compl. ¶ 10 (JA 2).
For the foregoing reasons, we affirm the district court’s
judgment of dismissal.2
So ordered.
2
Jacobs is not entitled to discovery because there are no
factual issues raised by the complaint that must be resolved. See
Stokes, 327 F.3d at 1216 (plaintiff entitled to discovery if she
“alleged sufficient facts that, taken as true, would establish that the
defendant[’s] actions exceeded the scope of [her] employment”).