                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
GRACIE DAVIS,                             )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                  Civil Action No. 13-1349 (ESH)
                                          )
UNITED STATES, et al.                     )
                                          )
      Defendants.                         )
_________________________________________ )


                                  MEMORANDUM OPINION

       On August 29, 2013, plaintiff Gracie Davis filed a pro se complaint in D.C. Superior

Court alleging that her supervisor and another manager at the Department of Veterans Affairs

harassed her, ridiculed her, yelled at her, confined her against her will, and denied her union

representation. (See Compl. [ECF No. 1-1], at 6.) On the same day, she also filed a motion for a

temporary restraining order to protect her from further harassment and abuse by these two

individuals. (See Mot. for TRO [ECF No. 1-2], at 2.) Pursuant to the Westfall Act, 28 U.S.C.

2769, the United States Attorney’s Office for the District of Columbia certified that at the time of

the underlying events, the named defendants were employees of the United States government

acting within the scope of their employment. (See Notice of Removal of a Civil Action [ECF No.

1], at 2.) Defendants removed the case to federal court and filed a motion to dismiss. (Id.) For

the reasons discussed below, this motion will be granted.

                                  FACUTAL BACKGROUND

       Plaintiff Gracie Davis is employed by the United States Department of Veterans Affairs

(“VA”). On August 29, 2013, she filed a complaint in D.C. Superior Court against two of her

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co-workers, Christine A. Hernandez (her immediate supervisor) and Donyale E. Smith (another

manager). Her complaint consisted of a one-page handwritten form, two “voluntary witness

statements,” and three pages of medical records. (See Compl. at 6-17.) Though the civil

complaint form included a space to make a demand for damages, Davis left it blank. (Id.)

        In the complaint and the attached witness statements, Davis briefly described the two

incidents that form the basis for her claim. Davis alleged that on August 7, 2013, Hernandez

came to her office and became “very irate, yelling, pointing her finger and objects [including

papers] in . . . [Davis’] face.” (Compl. at 6.) She further alleged that Hernandez publicly berated

her in front of her co-workers, threatened her, and also “impede[d] [her] personal body space . . .

[and] confined [and] pinned [her] to [her] desk . . . against [her] will. . . .” (Id. at 6, 9) Davis was

“so upset” that she was “relieved of duty and put on meds.” (Id. at 6) On August 23, 2013, Davis

called the Metropolitan Police Department after Hernandez and Smith allegedly “harassed [her],

yell[ed] at [her], denied [her] union representation . . . [and] held [her] in a room against [her]

will. (Id. at 6, 15). In addition to filing the complaint form, Davis also filed a motion for a

Temporary Restraining Order (“TRO”) seeking an “order[] of protection” to prevent further

“harass[ment] and abuse” by Hernandez and Smith. (Mot. for TRO at 2.)

        On September 6, 2013, Daniel F. Van Horn, the Chief of the Civil Division of the United

States Attorney’s Office for the District of Columbia, certified that Smith and Hernandez were

federal employees acting within the scope of their employment when the underlying incidents

occurred. (Notice of Removal at 2.) Based on this certification, the United States was substituted

as the defendant and the case was removed to federal court. See 28 U.S.C. § 2679(d)(2).

Plaintiff then filed a motion to remand the case to D.C. Superior Court, which this Court denied

on October 24, 2013. (Order [ECF No. 8].)



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         The precise contours of plaintiff’s legal claims are not entirely clear from her complaint,

motion for a TRO, or the opposition filed in response to defendant’s motion to dismiss. (See

Notice of Request for Denial of Defs. Request of Dismissal of Pltf.’s Current Case Moved by

Defs. to the Washington DC Federal Court [ECF No. 10] (“Opp.”).) That said, the Court must

construe a pro se plaintiff’s motion broadly and look to the relief sought to infer the claims made

wherever possible. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bradley v. Smith, 235

F.R.D. 125, 127 (D.D.C. 2006) (“[P]leadings filed by pro se litigants are liberally construed, and

are held to less stringent standards than are applied to pleadings prepared by attorneys.”).

Applying this standard, the Court will view Davis’ complaint as alleging all possible legal

theories that could apply: (1) intentional torts (battery, assault, false imprisonment, and

intentional infliction of emotional distress); (2) discrimination in violation of Title VII

(harassment and hostile work environment); (3) a violation of the Administrative Procedure Act;

and (4) a violation of her right to due process under the Fifth Amendment. The Court will

consider each of these claims in turn.

                                             ANALYSIS

    I.      STANDARD OF REVIEW

         To survive a motion to dismiss under Rule 12(b)(1), plaintiffs must demonstrate that the

court has jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). Since

district courts are courts of limited jurisdiction, the inquiry into “subject matter jurisdiction is, of

necessity, the first issue for an Article III court.” Loughlin v. United States, 393 F.3d 155, 170

(D.C. Cir. 2004) (internal quotation marks omitted). In “determining the question of jurisdiction,

federal courts accept the factual allegations contained in the complaint as true . . . . Moreover,

the Court can consider material outside of the pleadings when determining whether it has



                                                   3
jurisdiction.” Halcomb v. Office of the Senate Sergeant-At-Arms, 563 F. Supp. 2d 228, 235

(D.D.C. 2008).

          To survive a Rule 12(b)(6) 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.’” Ashcroft

v. Iqbal, 556 U.S. 662 (2009). “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.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). This

facial plausibility standard “asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. (citing Twombly, 550 U.S. at 556,). “[A] complaint [does not] suffice if it

tenders ‘naked assertions' devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550

U.S. at 557) (some alteration marks omitted). In addition to the allegations made within the four

corners of plaintiff’s complaint, the Court is permitted to consider “any documents either

attached to or incorporated in the complaint and matters of which [it] may take judicial notice.”

See EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997).

    II.      Plaintiff’s Battery, Assault, False Imprisonment, and IIED Claims

          Though she failed to include any specific damage demand in her complaint, the Court

will construe Davis’ complaint as alleging that Hernandez and Smith committed the intentional

torts of battery, assault, false imprisonment and intentional infliction of emotional distress

(“IIED”) during the two incidents described above. 1 Yet, because the named defendants

committed the underlying acts during the course of their government duties and plaintiff is

1
  In plaintiff’s opposition she states that she was “held against her will/battery [and] put into abnormal
fear and duress . . . .” (Opp. at 4); see also, e.g., Banks v. Harrison, 864 F. Supp. 2d 142, 147 (D.D.C.
2012) (characterizing a similar situation in which the plaintiff “allegedly feared physical harm from the
defendant’s shouting, pointing his finger, and threatening legal action” as assault) (citing Koch v. United
States, 209 F. Supp. 2d 89, 94 (D.D.C. 2002)); DeWitt v. D.C., 43 A.3d 291, 295 (D.C. 2012) (“The gist
of any complaint for . . . false imprisonment is an unlawful detention. . . .” (internal citation omitted)).


                                                      4
herself a federal employee, the Court lacks subject-matter jurisdiction over these claims to the

extent they seek money damages. 2

        Under the Federal Employees Liability Reform and Tort Compensation Act of 1988,

federal employees have absolute immunity for torts committed during the course of their official

duties. See Osborn v. Haley, 549 U.S. 225, 229 (2007) (citing 28 U.S.C. § 2679(b)). Where, as

in this case, the Attorney General or his designee certifies that the actions of government

employees for which they are being sued were taken in the course of their official duties, the

“employee[s are] dismissed from the action, and the United States is substituted as defendant in

place of the employee[s].” 3 Osborn, 549 U.S. at 230.

        It is well-established that under the doctrine of sovereign immunity, an individual may

not bring a tort claim against the federal government absent an explicit waiver by Congress. See,

e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields

the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in


2
  Insofar as plaintiff’s complaint seeks to rely on prior tortious conduct as a basis for enjoining the named
defendants from engaging in similar tortious conduct in the future, she has come to the wrong place. (See
Mot. for TRO at 2.) Courts are not in the business of enjoining future actions of specific government
officials, even in their individual capacities. See Simpkins v. Shalala, 999 F. Supp. 106, 119-20 (D.D.C.
1998) (holding that the FTCA represents the exclusive remedy for torts committed by the government and
that government employees are immune from injunctive relief for intentional torts committed during the
course of their business); Vanover v. Hantman, 77 F. Supp. 2d 91, 99 (D.D.C. 1999) (holding that
individual government officials are not immune from injunctive relief arising from their intentional torts,
but that “an award of injunctive relief . . . cannot be imposed on [government] officials in their individual
capacities.”) As the D.C. Circuit has explained in other contexts, federal courts are not “super-personnel
department[s] that reexamine[] an entity’s business decisions.” Barbour v. Browner, 181 F.3d 1342, 1346
(D.C. Cir. 1999) (citing Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)). Though in
theory the Court could construe plaintiff’s claim as a request for mandamus to compel federal employees
not to act in a particular way, the federal mandamus statute is insufficient because, unlike the FTCA, it
does not constitute a waiver of sovereign immunity. See Washington Legal Found. v. U.S. Sentencing
Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996). To sufficiently protect herself from future disputes plaintiff
may best be served by invoking the appropriate administrative procedures that govern her workplace.
3
 While plaintiff has the right to challenge this certification, the evidence presented to this Court
overwhelmingly demonstrates that Hernandez and Smith engaged in the allegedly improper behavior
during the course of their employment as managers at the VA.
                                                     5
nature.” (internal citations omitted)). Where a plaintiff seeks money damages for torts

committed by federal employees in the course of their employment, they must rely on the waiver

of sovereign immunity found in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).

However, plaintiff is unable to rely on the FTCA to bring her tort claims for three reasons.

        First, she is a federal employee and under the Federal Employees Compensation Act

(“FECA”), 5 U.S.C. § 8101, et seq., federal employees are statutorily precluded from bringing

suits for money damages for injuries sustained during the course of their employment. 4 See id. §

8116(c); Avile-Wynkoop v. Neal, 2013 WL 5739214, at *2 (D.D.C. Aug. 27, 2013). Second, the

FTCA expressly excludes from its waiver of sovereign immunity cases “arising under”

intentional torts including battery, assault, and false imprisonment unless such acts are

committed by “investigative or law enforcement officers.” See Tolson v. Stanton, 844 F. Supp.

2d 53, 57 (D.D.C. 2012) (citing 28 U.S.C. § 2680(h)). Because neither Hernandez nor Smith are

investigative or law enforcement officers, the plaintiff has no basis on which to rely on the

FTCA waiver of sovereign immunity for her battery, assault, and false imprisonment claims.

Third, in order to bring suit under the FTCA, a plaintiff must have exhausted all available

administrative remedies. This requires her to have “(1) presented a federal agency with a claim

describing, with particularity, the alleged injury and damages and (2) received either a written

denial of the claim from the agency or waited six months from the date of filing without
4
  The D.C. Circuit has not yet decided whether FECA covers claims for IIED. Kalil v. Johanns, 407 F.
Supp. 2d 94, 100 (D.D.C. 2005) (“To date, our Circuit Court has not addressed whether the tort of [IIED]
falls within the scope of an ‘injury’ covered by FECA, and those Circuits that have are in disagreement on
this point.”) That said, in the Court’s view, 5 U.S.C. § 8116(c) does not seem to distinguish IIED from
other intentional torts on its face when its states that “[t]he liability of the United States . . . with respect to
the injury or death of an employee is exclusive and instead of all other liability of the United States.”
Dismissal of her IIED claim is therefore appropriate on this ground, as well as the fact that plaintiff did
not exhaust her administrative remedies.




                                                         6
obtaining a final agency disposition. Failure to comply with the administrative requirements of

the FTCA deprives the Court of jurisdiction to hear the case.” Smalls v. Emanuel, 840 F. Supp.

2d 23, 25 (D.D.C. 2012) (citing Totten v. Norton, 421 F. Supp. 2d 115, 122 (D.D.C. 2006)); see

also McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from

bringing suit in federal court until they have exhausted their administrative remedies.”) Based

on the complaint and other court filings, it is clear that plaintiff has not yet exhausted these

administrative remedies under the FTCA.

          For each of these reasons, the Court does not have subject-matter jurisdiction over

plaintiff’s tort claims, and they will be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).

   III.      Discrimination

          In her opposition, plaintiff argues that Hernandez “continues to supervise her in a bias

[sic] matter.” (Opp. at 3.) However, insofar as the Court construes plaintiff’s complaint as an

allegation that she was harassed and subjected to a hostile work environment, her complaint also

must be dismissed for lack of subject-matter jurisdiction. In 42 U.S.C. § 2000e-16, Congress

extended the protection of Title VII to federal employees and waived sovereign immunity to

permit them to sue the “head of the department, agency, or unit, as appropriate.” Therefore,

because plaintiff did not bring her discrimination claims against the proper defendant (in this

case, the Secretary of the VA), the Court has no choice but to dismiss her discrimination claims

for lack of subject-matter jurisdiction.

          Plaintiff could rectify this procedural defect by filing an amended complaint identifying

the proper defendant. However, even if she were to do so, this Court would still be forced to

dismiss her harassment claims for failure to exhaust the administrative remedies available to her

under Title VII. See 42 U.S.C. §2000e; 29 C.F.R. § 1614.407.



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          Prior to filing a discrimination lawsuit under Title VII, an employee must contact an

Equal Employment Opportunity counselor within 45 days of the allegedly discriminatory act

and, after a final interview, file a formal administrative complaint. See 29 C.F.R. §

1614.105(a)(1). The agency then has 180 days to investigate the complaint. Only after that time

has lapsed or after the agency has issued a final decision is the employee permitted to pursue his

or her discrimination claims in federal court. See 42 U.S.C. §2000e; 29 C.F.R. § 1614.407. As

the D.C. Circuit has explained, “[c]omplainants must timely exhaust these administrative

remedies before bringing their claims to court.” Bowden v. United States, 106 F.3d 433, 437

(D.C.Cir.1997) (citing Brown v. Gen. Serv. Admin., 425 U.S. 820, 832-33 (1976)). In this case,

Davis filed her only EEO complaint on May 22, 2013. Not only had the requisite 180 days not

elapsed when she filed this complaint in D.C. Superior Court, but more importantly, the EEO

complaint could not have relied upon the events which took place on August 7, 2013 and August

23, 2013 at issue in this case. 5

    IV.      APA Claim

          In her opposition, plaintiff also argues that the actions taken by Hernandez and Smith are

“not those of . . . normal . . . work and easily seen as ‘[a]rbitrary and [c]apricious’ behavior” and

that the VA “failed to follow government procedure.” (Opp. at 3-4.) Based on the nature of the

allegations and the terms used by plaintiff, the Court will construe this as an attempt to invoke

the Administrative Procedure Act (“APA”)—another limited waiver of sovereign immunity. 5

U.S.C. § 701, et seq. The APA “establishes a cause of action for those ‘suffering legal wrong

5
  Even if the Court were to find that plaintiff sufficiently exhausted her administrative remedies and that she was
able to clear the jurisdictional threshold of Fed. R. Civ. P. 12(b)(1), the Court would almost certainly be forced to
dismiss her discrimination allegations for failure to state a claim under Fed. R. Civ. P. 12(b)(6). As defendant
correctly points out, plaintiff has failed to identify any protected classification that would support a discrimination
claim under Title VII and, for purposes of her hostile work environment claim, she has not plead any facts to support
a claim that she was subjected to pervasive harassment. See, e.g., Stewart v. Evans, 275 F. 3d 1126, 1134 (D.C. Cir.
2002) (“Even a few isolated incidents of offensive conduct do not amount to actionable harassment.”).


                                                          8
because of agency action, or adversely affected or aggrieved by agency action.’” Koretoff v.

Vilsack, 614 F.3d 532, 536 (D.C. Cir. 2010) (quoting 5 U.S.C. § 702). APA relief is only

permitted where the plaintiff is seeking relief “other than money damages.” 5 U.S.C. § 702. The

APA also “excludes from its waiver of sovereign immunity . . . claims seeking relief expressly or

impliedly forbidden by another statute.” See Avile-Wynkoop v. Neal, 2013 WL 5739214, at *2

(D.D.C. Aug. 27, 2013) (citing Transohio Savings Bank v. Director, Office of Thrift Supervision,

967 F. 2d 598, 607 (D.C. Cir. 1992)).

        Under this standard, plaintiff has not alleged sufficient facts to bring a legal claim under

the APA. First, any claims of discrimination by plaintiff may not be brought under the APA.

“The Supreme Court has held that Title VII provides the exclusive remedy for claims of

discrimination in federal employment. . . . § 2000e-16 forbids injunctive relief except on its own

terms. Hence, the APA does not waive sovereign immunity for her employment discrimination

claim . . . .” Avile-Wynkoop v. Neal, 2013 WL 5739214, at *3 (D.D.C. Aug. 27, 2013) (internal

citations and quotation marks omitted). Second, causes of action under the APA are limited to

cases that arise from “final agency action.” 5 U.S.C. § 704. Here plaintiff does not challenge

final agency action. Rather, she merely seeks injunctive relief to compel two specific federal

employees to act in a certain way. Therefore, any APA claim that Davis might have must also be

dismissed.

   V.        Due Process

        Though she did not allege that her constitutional right to due process was violated

explicitly in her initial complaint, plaintiff argues in her opposition that “Hernandez and Smith

violated . . . [her] [m]ost [b]asic [r]ight of [d]ue [p]rocess, and possibly send a message to

Defendant Christine Hernandez [sic] her position allows authority beyond her position.” (Opp.



                                                  9
at 3.) “The Due Process Clause of the Fifth Amendment provides that no person shall be

deprived of life, liberty, or property without due process of law. U.S. Const. amend. V. To

trigger due process protections, this court must find that the challenged action impinged on a

constitutionally protected interest—life, liberty, or property.” Simpkins v. Shalala, 999 F. Supp.

106, 118 (D.D.C. 1998). In the Court’s view, neither plaintiff’s statements in her opposition nor

any other allegation made in her complaint constitute a violation of a protected liberty interest.

At best, plaintiff’s statements are conclusory allegations that her right to due process under law

was violated by Hernandez and Smith. Though it is clear that plaintiff believes she was wronged

by her supervisors, this does not translate into a due process claim as a matter of substantive law.

Therefore, under Fed. R. Civ. P. 12(b)(6), her due process claims must be dismissed.

                                         CONCLUSION

       Accordingly, and for the reasons stated above, defendant’s motion to dismiss will be

GRANTED and her motion for a temporary restraining order DENIED.



                                                                  /s/
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge


Date: January 10, 2014




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