                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 JOYCE M. CONYERS,

                        Plaintiff,
                                                     Case No. 1:16-cv-02000 (CRC)
                        v.

 JOEL WESTPHAL,

                        Defendant.


                                     MEMORANDUM OPINION

       Joel Westphal, Director of the Navy Archives, may here be grateful for the Westfall Act.

That is so because it affords “federal employees absolute immunity from common-law tort

claims arising out of acts they undertake in the course of their official duties,” Osborn v. Haley,

549 U.S. 225, 229 (2007), and such is this suit. Joyce Conyers, a Navy records manager, has

sued Westphal for common-law assault, based on incidents arising out of a workplace dispute.

The Attorney General, through delegated authority, has certified that those events occurred

within the scope of Westphal’s employment. Because the Court agrees with that determination,

the action is exclusively cognizable as one against the United States under the Federal Tort

Claims Act. But for the reasons detailed below, that means this Court is without jurisdiction to

hear the case.

 I.    Background

       Westphal and Conyers both work at the Navy Yard in Washington, D.C. Am. Compl.

¶ 3. Conyers alleges that, in June 2016, Westphal sent her a “threatening” email, which read as

follows: “You broke the chain [of command] when you gave a direction to a member of [my]

staff. Please cease and desist and use the chain.” Id. ¶ 7. Conyers “felt threatened,” and
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responded: “Please do not email again[.] [T]his is threatening and unprofessional. You may

email my supervisor. Your emails are derogatory and commanding.” Id. ¶ 8. After the email

exchange, Westphal allegedly walked to Conyers’ office and stopped in the doorway. Id. ¶¶ 9–

10. He was “extremely angry and agitated,” spoke to her “in a threatening and menacing

manner,” and “pointed his finger at [Conyers] [warning her] that she better not communicate

again with his employees and that he was going to file a complaint.” Id. ¶¶ 10–11, 13.

Conyers—“fear[ing] for her safety”—then “asked [Westphal] to leave her office,” and he did.

Id. ¶¶ 14–16. Later, when Conyers was speaking to a front-desk security officer about the

incident, a still-angry Westphal allegedly “came bursting through” a set of double doors,

“charging towards [Conyers]”; but then he “proceeded to exit and went outside” the building. Id.

¶¶ 18–20. The whole incident allegedly had significant physical repercussions for Conyers: She

claims to have developed high blood pressure, dizziness, and a migraine, and that her body

started to shake. Id. ¶¶ 25, 28. After a police officer took her to a police station to provide a

statement, Conyers was transported by ambulance to a local hospital due to her high blood

pressure. Id. ¶¶ 26–29. The next day, her primary care doctor allegedly “instructed [Conyers] to

be on bedrest for eight . . . days.” Id. ¶ 31. Conyers returned to work roughly three weeks later,

but remained fearful of Westphal. Id. ¶¶ 32–34.

       The next month, in July 2016, Conyers filed a complaint in D.C. Superior Court based on

the above allegations, naming Westphal as the sole defendant, in his individual capacity. As

amended, the complaint alleges a single count of assault. See Am. Compl. ¶¶ 35–40. In October

2016, Westphal filed a Notice of Removal in this Court, attaching a Certification signed by the

Chief of the Civil Division of the U.S. Attorney’s Office for the District of Columbia, pursuant

to authority delegated by the Attorney General. See 28 C.F.R. § 15.4. The Certification stated



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that “Defendant Joel Westphal was an employee of the U.S. Department of the Navy and was

acting within the scope of his [f]ederal employment at the time of the incidents out of which the

claims alleged [in the instant complaint] therein arose.” Notice of Removal, Attach. 2. Under

the Federal Employees Liability Reform and Tort Compensation Act of 1988—commonly

referred to as the Westfall Act—such certification is “conclusive for purposes of removal,” in

that “once certification and removal are effected, exclusive competence to adjudicate the case

resides in the federal court, and that court may not remand the suit to the state court.” Osborn,

549 U.S. at 231.1 Moreover, so long as the district court agrees with the certification’s scope-of-

employment determination, “the United States is substituted as defendant in place of the

employee,” and “[t]he litigation is thereafter governed by” the Federal Tort Claims Act

(“FTCA”), 60 Stat. 842. Osborn, 549 U.S. at 230.

       Having removed the case to this Court, Westphal now seeks to dismiss it, for lack of

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).2 He argues that, in

light of the Attorney General’s certification, the suit is cognizable only as one against the United

States under the FTCA. Accordingly, he contends that this Court is without subject matter

jurisdiction, because (1) Conyers has failed to exhaust her administrative remedies by filing a

damages claim with the appropriate agency (here, the Department of the Navy), as required by

the FTCA, see 28 U.S.C. § 2675(a); and (2) Conyers’ assault claim, as an intentional tort, is not



       1
           In light of that clear command, the Court will deny Conyers’ Motion to Remand.
       2
         Westphal also construed Conyers’ complaint as asserting claims of intimidation and
intentional infliction of emotional distress, and argued that those purported claims should be
dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Def.’s
Mem. Supp. Mot. Summ. J. (“Def.’s MSJ”) 11–12. But Conyers has clarified that assault is her
only remaining claim. See Pl.’s Mem. Opp’n Def.’s Mot. to Dismiss & Mem. Supp. Mot. to
Remand (“Pl.’s Opp’n) 3 n.1.

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covered by the FTCA’s waiver of sovereign immunity, see 28 U.S.C. § 2680(h). Def.’s Mem.

Supp. Mot. Summ. J. (“Def.’s MSJ”) 5–11. 3 Conyers does not directly contest these arguments,

and therefore has effectively conceded them. See Buggs v. Powell, 293 F. Supp. 2d 135, 141

(D.D.C. 2003) (arguments not addressed in an opposition may be treated as conceded) (citing

FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997)). However, she strikes at a root premise

underlying them all: Namely, she insists that Westphal’s alleged actions were beyond the scope

of his employment. See Pl.’s Mem. Opp’n Def.’s Mot. Dismiss & Mem. Supp. Mot. Remand

(“Pl.’s Opp’n”) 9–13. If that were so, the FTCA would not apply, and none of Westphal’s

jurisdictional arguments would either.

       Ultimately, though, the Court agrees with the government’s determination that

Westphal’s alleged conduct fell within the scope of his employment. It follows that the Court is

without subject matter jurisdiction over Conyers’ claim.

 II.   Legal Standard

       Because federal courts are of limited jurisdiction, with “only that power authorized by

Constitution and statute,” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting Kokkonen v.

Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)), they have “an affirmative

obligation” to ascertain the existence of subject matter jurisdiction, James Madison Ltd. by

Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). “[W]hen a federal court concludes that it

lacks subject-matter jurisdiction, the court must dismiss the [case] in its entirety.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 514 (2006).


       3
          Westphal also argued in his opening memorandum that under a head-scratching
application of the derivative jurisdiction doctrine, this Court—which would otherwise have
exclusive jurisdiction over the claim—lacks jurisdiction because the D.C. Superior Court lacked
jurisdiction prior to removal. See Def.’s MSJ 5–7. But he appears to have abandoned that
argument in his reply.

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       Where, as here, the defendant does not challenge the facts alleged in the complaint in

moving to dismiss for lack of jurisdiction, the court accepts the truth of those factual allegations

and draws all inferences in favor of the plaintiff. Am. Nat. Ins. Co. v. FDIC, 642 F.3d 1137,

1139 (D.C. Cir. 2011); see also Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006)

(“If a defendant mounts a ‘facial’ [as opposed to a factual] challenge [to jurisdiction,] the court

must accept as true the allegations in the complaint and consider the factual allegations of the

complaint in the light most favorable to the non-moving party.”). However, “those inferences

[which] are unsupported by facts alleged in the complaint or amount merely to legal

conclusions” should not be assumed as true. Merkulov v. United States Park Police, 75 F. Supp.

3d 126, 128 (D.D.C. 2014) (citing Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)).

 III. Analysis

       The Attorney General’s certification is “the first, but not the final word” on whether

Westphal’s actions, as alleged in Conyers’ complaint, were within the scope of his employment.

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 (1995). “A plaintiff may request judicial

review of the Attorney General’s scope-of-employment determination,” Osborn, 549 U.S. at 246,

and Conyers has done so here. However, “[t]he Attorney General’s certification that the

defendant was . . . acting [within the scope of employment] is prima facie evidence of that fact,”

Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013), carrying a “rebuttable presumption that

the employee has absolute immunity from the lawsuit,” Wilson v. Libby, 535 F.3d 697, 711

(D.C. Cir. 2008).

       “Scope of employment questions are governed by the law of the place where the

employment relationship exists.” Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006).

Here, that place is the District of Columbia, so D.C. law governs. Id.; see also Haddon v. United



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States, 68 F.3d 1420, 1423 (D.C. Cir. 1995); Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C. Cir.

1994). Under D.C. law, 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 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.” Schecter v. Merchants Home Delivery, Inc., 892 A.2d 415, 427

(D.C. 2006) (quoting Restatement (Second) of Agency § 228 (1958)).

       All four of these conditions are satisfied here. First, Westphal’s conduct, which was

aimed at enforcing his view of a proper chain of command, is “of the kind he is employed to

perform” as the Director of the Navy Archives. Schecter, 892 A.2d at 427. Indeed, the sole

communications alleged in the complaint between Westphal and Conyers were work-related:

Westphal sent an email to Conyers telling her that she had inappropriately given a direction to a

member of his staff, and then he followed up in person by telling her that “she better not

communicate again with his employees and that he was going to file a complaint.” Am. Compl.

¶¶ 7, 13. Even if Westphal was angry—or “menacing,” “agitated,” or “gritting . . . his teeth”—

while taking these actions, id. ¶¶ 10–11, 13, and even if Conyers felt threatened by them, see id.

¶¶ 8, 14, the actions themselves were still typical of work a senior-level manager might be

expected to perform. Second, Westphal’s alleged conduct “occur[ed] substantially within . . .

authorized time and space limits.” Schecter, 892 A.2d at 427. When Westphal allegedly sent an

email, came to Conyers’ office, and passed by her at the security desk, he did so at the workplace

and during the workday. Third, it is clear that Westphal’s conduct was “actuated, at least in part,

by a purpose to serve [his agency employer].” Schecter, 892 A.2d at 427. As explained above,

his conduct was allegedly motivated, at least partially, by a desire to enforce a departmental



                                                   6
chain of command. Finally, Conyers does not allege that Westphal used force against her. In

fact, she alleges that he left her office when asked to do so, and that he exited the building when

he saw her at the security desk. Accordingly, “[b]ecause the complaint . . . contains no allegation

that [Westphal] used any force,” the final criterion is not “at issue.” Haddon, 68 F.3d at 1424

(finding no force for purpose of scope-of-employment analysis where defendant’s alleged

conduct was limited to a verbal threat).

       Conyers counters that Westphal’s actions were beyond the scope of his employment

because he “is not [her] supervisor nor within her chain of command, so [neither] disciplining

her nor confronting her [were] within his position’s duties.” Pl.’s Opp’n 10. But for actions to

be “of the kind” an employee is expected to perform, they need not be spelled out on a list of his

job duties. Rather, the test is whether the employee’s “actions [were] ‘of the same general nature

as that authorized’ or ‘incidental to the conduct authorized.’” Haddon, 68 F.3d at 1424 (quoting

Restatement (Second) of Agency § 229)). Conduct is incidental—or “foreseeable”—when it is

“a direct outgrowth of the employee’s instructions or job assignment.” Boykin v. DC, 484 A.2d

560, 562 (D.C. 1984) (quoting Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 32 (D.C. 1979)).

Clearly, Westphal’s purported attempts to enforce his own chain of command—including by

emailing or threatening to file a complaint against a fellow employee—were foreseeable

incidents of his managerial duties.

       Finally, Conyers seeks to draw the Court’s attention away from Westphal’s actions to the

reactive conduct of others. See Pl.’s Opp’n 10–13. She points to her own trip to the hospital and

subsequent bedrest, see Am. Compl. ¶ 29–31; the security officer who “called in a report” after

Conyers “informed him of what had happened [and] that she felt unsafe,” id. ¶¶ 18, 22; and a

D.C. Superior Court “Stay Away Order,” which was directed at both parties, Pl.’s Opp’n, Ex. 1.



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Giving Conyers the benefit of all reasonable inferences, these various facts could indicate that

Westphal’s actions were “serious and severe,” as she suggests. Pl.’s Opp’n 11. But they do not

plausibly show that Westphal’s actions were beyond the scope of his employment. And Conyers

has not cited any legal authority for the proposition that the reactions of others should bring

otherwise work-related conduct outside the scope of employment.

       For the above reasons, the Court concurs with the Attorney General’s certification, and

finds that Westphal’s alleged conduct was within the scope of his employment.4 Accordingly, to

the extent this action may be brought at all, it must be brought against the United States under

the FTCA. Osborn, 549 U.S. at 230. But as argued by Westphal, see Def.’s MSJ 5–11, and

(effectively) conceded by Conyers, this Court lacks jurisdiction over the case once it is governed

by that statute. Conyers has failed to exhaust her administrative remedies, which the FTCA

requires her to do. See Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C. Cir. 2011) (describing the

failure to exhaust administrative remedies under the FTCA as a “jurisdictional” defect). And the

statute does not permit her to bring a claim of assault. See Koch v. United States, 209 F. Supp.

2d 89, 94 (D.D.C. 2002) (dismissing plaintiff’s claim for assault as “not cognizable under the

FTCA” pursuant to 28 U.S.C. § 2680). The Court will therefore dismiss the case.




       4
         For similar reasons, Conyers is not entitled to discovery. “[T]o obtain discovery and an
evidentiary hearing, [Conyers’ burden is to] allege[] sufficient facts that, taken as true, would
establish that [Westphal’s] actions exceeded the scope of [his] employment.” Stokes v. Cross,
327 F.3d 1210, 1215 (D.C. Cir. 2003). As explained above, Conyers has not met this burden.
(Indeed, because Westphal’s facial jurisdictional challenge does not challenge any facts alleged
in the complaint, Conyers’ burden to obtain discovery and her burden to establish jurisdiction are
one and the same.)

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 IV. Conclusion

       For the above reasons, the Court will grant Westphal’s motion to dismiss.




                                                           CHRISTOPHER R. COOPER
                                                           United States District Judge



Date: January 27, 2017




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