                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
AFRIKA HICKS,                  )
                               )
     Plaintiff,                )
                               )
     v.                        )    Civil Action No. 07-2186 (RWR)
                               )
OFFICE OF THE SERGEANT AT      )
ARMS FOR THE UNITED STATES     )
SENATE, et al.,                )
                               )
     Defendants.               )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Afrika Hicks, a former employee of the Office of

the Sergeant at Arms for the United States Senate, brings

assault, wrongful imprisonment, and intentional infliction of

emotional distress claims against defendants Kimball Winn and

Rick Kaufman, her former supervisors.   Hicks also brings

religious discrimination and retaliation claims against the

Senate.   Winn and Kaufman filed a government certification

stating that they were acting within the scope of their

employment during the alleged incidents and move to substitute

the United States and to dismiss the tort claims against them

for lack of subject matter jurisdiction.   Because Hicks has met

her burden of challenging the government’s certification as to

the intentional infliction of emotional distress claim, but not

the assault and wrongful imprisonment claims, the motion to

substitute and to dismiss will be granted in part and denied in
                                 -2-

part.    The United States will be substituted for Winn and

Kaufman as to the assault and wrongful imprisonment claims, and

these two claims will be dismissed for lack of subject matter

jurisdiction because sovereign immunity has not been waived

under the Federal Tort Claims Act (“FTCA”).    Limited discovery

will be allowed on the defendants’ scope of employment regarding

the intentional infliction of emotional distress claim.

                              BACKGROUND

        The complaint and materials to which it refers set forth

the following facts relevant to the pending motion.    Hicks

worked as a Telecommunications Operation Specialist at the

Office of the Sergeant at Arms for the United States Senate.

(Compl. ¶ 10.)    In a meeting, Winn and Kaufman, Hicks’

supervisors, “issued . . . Hicks a termination notice with an

immediate effective date.”    (Id. ¶ 22.)   The termination notice

was signed by Winn and stated that Hicks “[was] to turn in [her]

Senate identification badge, keys, and any Senate equipment

issued to [her] immediately” and “may take [her] personal

belongings with [her] today.”    (Pl.’s Opp’n to Defs.’ Mot. to

Substitute the United States & Dismiss Count IV (“Pl.’s Opp’n”),

Ex. 1 at 1.)    Hicks left the meeting room to retrieve her

personal possessions and returned “to turn over her Agency

equipment, keys and identification badge to her supervisors.”

(Compl. ¶ 23.)    Hicks requested a receipt, but Winn refused to
                                   -3-

provide one.     (Id.)   Hicks then decided to return her Senate

property to the Senate’s human resources department in order to

obtain a receipt.     (Id.)   Winn and Kaufman “attempted to

physically restrict” Hicks from leaving the office by “pushing

[her] against the wall and physically grabbing and restraining

her.”    (Id.)    Hicks’ husband, Nikkol Hicks, an officer with the

Capitol Police, witnessed the defendants restraining Hicks.

(Id. ¶ 24.)      Later, Winn and Kaufman allegedly misused the

Capitol Police internal complaint procedures to prompt an

internal affairs investigation of Officer Hicks.        (Id. ¶ 36.)

This alleged misuse included Winn falsifying a report against

Officer Hicks.     (Id. ¶ 24.)

        Count IV of Hicks’ complaint alleges assault, false

imprisonment, and intentional infliction of emotional distress

claims against Winn and Kaufman.         Winn and Kaufman move to

substitute the United States as the defendant in Count IV and

have filed a certification by the then-Chief of the Civil

Division, United States Attorney’s Office for the District of

Columbia, stating that Winn and Kaufman were acting within the

scope of their employment.       Winn and Kaufman also move to

dismiss Count IV for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1) because Hicks has not

exhausted her FTCA administrative remedies and because sovereign

immunity has not been waived for these alleged torts.        Hicks
                               -4-

acknowledges that sovereign immunity has not been waived under

the FTCA.   (Pl.’s Opp’n at 3 (stating that Hicks would “be left

without recourse” if the United States is substituted for Winn

and Kaufman because “as the Defendants correctly argue, the

United States has not waived immunity for claims of, or arising

from, torts such as assault and wrongful imprisonment”).)

However, Hicks maintains that Kaufman and Winn’s actions were

not within the scope of their employment, rendering the United

States’ substitution improper and the FTCA inapplicable.1

                            DISCUSSION

     “On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

burden of establishing that the court has subject-matter

jurisdiction.”   Shuler v. United States, 448 F. Supp. 2d 13, 17

(D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992)).   In reviewing the motion, a court accepts as

true all of the factual allegations contained in the complaint,

Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), and

may also consider “undisputed facts evidenced in the record.”

Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003); see also Tootle v. Sec’y of the Navy, 446 F.3d



     1
       Thus, resolving the defendants’ argument that Hicks failed
to exhaust her administrative remedies as is required by the FTCA
must await resolution of whether the FTCA even applies to Hicks’
intentional infliction of emotional distress claim.
                                -5-

167, 174 (D.C. Cir. 2006) (explaining that a court may look

beyond the pleadings to resolve disputed jurisdictional facts

when considering a motion to dismiss under Rule 12(b)(1)).      The

“nonmoving party is entitled to all reasonable inferences

that can be drawn in her favor.”      Artis, 158 F.3d at 1306

(emphasis omitted).

     “The United States is immune from suit unless it waives its

sovereign immunity through an act of Congress.”     Hayes v. United

States, 539 F. Supp. 2d 393, 397 (D.D.C. 2008) (citing FDIC v.

Meyer, 510 U.S. 471, 475 (1994)).      In a suit against the United

States, the plaintiff “bears the burden of proving that the

government has unequivocally waived its immunity for the type of

claim involved.”   Hayes, 539 F. Supp. 2d at 397 (citation

omitted).   “The [FTCA] provides . . . a waiver in civil damages

actions based on ‘injury or loss of property, or personal injury

or death caused by the negligent or wrongful act or omission of

any employee of the Government while acting within the scope of

his office or employment[.]’”   Id. (quoting 28 U.S.C.

§ 1346(b)).   However, the FTCA’s waiver of sovereign immunity

does not apply to “[a]ny claim arising out of assault, battery,

false imprisonment, false arrest, malicious prosecution, abuse

of process, libel, slander, misrepresentation, deceit, or

interference with contract rights.”     28 U.S.C. § 2680(h).
                                -6-

I.   WESTFALL CERTIFICATION

     Courts must “independently determine whether the United

States is a proper defendant” in a tort suit against federal

employees.   Koch v. United States, 209 F. Supp. 2d 89, 91

(D.D.C. 2002).   “The Federal Employees Liability Reform and Tort

Compensation Act of 1988, commonly known as the Westfall Act, 28

U.S.C. § 2679(d), provides that a federal employee is immune

from tort liability when he is ‘acting within the scope of his

office or employment at the time of the incident out of which

the claim arose.’”   Healy v. United States, 435 F. Supp. 2d 157,

161 (D.D.C. 2006) (quoting 28 U.S.C. § 2679(d)).    Under the Act,

“when the Attorney General or his designee believes that a

federal employee was acting within the scope of employment, he

may issue a certification to that effect.”   Id. at 161 (citation

omitted).    The certification “requires the substitution of the

United States for the federal employee as the defendant in the

lawsuit[] and it converts the lawsuit into an action against the

United States under the Federal Tort Claims Act.”   Id. (internal

quotations and citations omitted).    The Attorney General’s

certification is prima facie evidence that the employees’

conduct was within the scope of their employment.   Hill v.

United States, 562 F. Supp. 2d 131, 135 (D.D.C. 2008).

     Rule 8 requires that a complaint contain a short and plain

statement of the claim showing that the plaintiff is entitled to
                                 -7-

relief.   Under that liberal pleading standard, the complaint of

a plaintiff challenging the certification “need only have

alleged sufficient facts that, taken as true, would establish

that the defendants’ actions exceeded the scope of their

employment.”   Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir.

2003).    The D.C. Circuit “has made it clear that ‘[n]ot every

complaint will warrant further inquiry into the

scope-of-employment issue.’ . . .      Consequently, where a

plaintiff fails to allege sufficient facts to rebut the

certification, the United States must be substituted as the

defendant because the federal employee is absolutely immune from

suit.”    Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009)

(quoting Stokes, 327 F.3d at 1216).

     The scope of employment inquiry is governed by the law of

agency as applied in the District of Columbia, where the tort

allegedly occurred.    See Wilson v. Libby, 498 F. Supp. 2d 74, 97

(D.D.C. 2007).   In the District of Columbia, the Restatement

(Second) of Agency provides the governing framework for

determining whether an employee acted within the scope of

employment.    Id.   “Under the Restatement, an employee’s conduct

falls within the scope of employment if: 1) it is of the kind of

conduct he is employed to perform; 2) it occurs substantially
                                 -8-

within the authorized time and space limits;2 3) it is actuated,

at least in part, by a purpose to serve the master; and 4) if

force is intentionally used by the servant against another, the

use of force is not unexpected by the master.”    Id. (citing

Restatement (Second) of Agency § 228 (1957)).

        A.   Nature of conduct

        “[C]onduct will be of the kind the servant is employed to

perform if it is ‘of the same general nature as that authorized’

or is ‘incidental to the conduct authorized.’”    Kalil v.

Johanns, 407 F. Supp. 2d 94, 97 (D.D.C. 2005) (quoting Haddon v.

United States, 68 F.3d 1420, 1423-24 (D.C. Cir. 1995), abrogated

on other grounds by Osborn v. Haley, 549 U.S. 225 (2007)).

Conduct is incidental if it is foreseeable.    Haddon, 68 F.3d at

1424.

        Foreseeable in this context does not carry the same
        meaning as it does in negligence cases; rather, it
        requires the court to determine whether it is fair to
        charge employers with responsibility for the
        intentional torts of their employees. To be
        foreseeable, the torts must be a direct outgrowth of
        the employee’s instructions or job assignment. It is
        not enough that an employee’s job provides an
        opportunity to commit an intentional tort.

Id. (internal citations and quotation marks omitted).    The

foreseeability inquiry requires courts “to look beyond alleged



        2
       The complaint alleges that the conduct occurred at Hicks’
workplace while the defendants were on duty. The defendants do
not dispute this fact. Therefore, the defendants’ conduct
satisfies the time and space requirement.
                                -9-

intentional torts” and “focus[] on the underlying dispute or

controversy, not on the nature of the tort.”   Wilson, 498 F.

Supp. 2d at 97-98 (internal quotation marks omitted).    The

inquiry thus “is broad enough to embrace any intentional tort

arising out of a dispute that was originally undertaken on the

employer’s behalf.”   Id.

       Courts have drawn a distinction between actions that are a

direct outgrowth of the job and those that do not arise directly

from an employee’s performance of authorized duties.    For

example, in Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976), a

deliveryman assaulted a customer immediately following a dispute

over whether the mattress should be carried into the apartment

and whether a check was an acceptable form of payment.    The

Lyon court concluded that the assault “arose naturally and

immediately between [the deliveryman] and the [customer] about

two items of great significance in connection with [the

deliveryman’s] job[:] the request of the [customer] . . . to

inspect the mattress and springs before payment . . . and [the

deliveryman’s] insistence on getting cash rather than a

check. . . .   The dispute arose out of the very transaction

which had brought [the deliveryman] to the premises.”    Id. at

652.   Moreover, in Johnson v. Weinberg, 434 A.2d 404 (D.C.

1981), the D.C. Court of Appeals found that a “laundromat could

be liable for injuries inflicted when an employee responsible
                                 -10-

for removing clothes from washing machines shot a customer

during a dispute over missing shirts . . . [b]ecause [t]he

assault arose out of the transaction which initially brought

[the customer] to the premises . . . and was triggered by a

dispute over the conduct of the employer’s business[.]”    Haddon,

68 F.3d at 1425 (internal quotation marks omitted).    Lyon and

Johnson “mark the outer limits of scope of employment.”     Id. at

1425.

        However, if the employee’s tort did not arise directly from

performance of an authorized duty and the job merely provided an

opportunity to act, courts have found such conduct to be outside

the scope of employment.    In Penn Cent. Transp. Co. v. Reddick,

398 A.2d 27 (D.C. 1979), a railroad employee assaulted a taxi

driver while traveling off duty from one worksite to another and

the court concluded that the employee’s conduct “‘was neither a

direct outgrowth of [his] instructions or job assignment, nor an

integral part of the employer’s business activity.’”    Haddon, 68

F.3d at 1425 (quoting Reddick, 398 A.2d at 32).     Furthermore, in

Haddon, where an electrician threatened to harm a chef unless

the chef withdrew his administrative complaint against another

co-worker, the court found that the electrician was not acting

within the scope of his employment because the electrician’s

threat did not stem from a dispute over the performance of his

work, it was completely unrelated to his responsibilities as an
                               -11-

electrician, it did not occur while performing assigned duties,

and the chef’s administrative complaint did not involve him.

Id.

      Hicks asserts that her case is similar to Mosely v. Second

New St. Paul Baptist Church, 534 A.2d 346 (D.C. 1987), where a

night janitor did not act within the scope of his employment

when he sexually assaulted two trespassers because there was no

evidence that security duties were within the janitor’s job

responsibilities.   Similarly, the D.C. Court of Appeals in

Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. 1984),

found that an employee whose duties included training blind

students to walk was not acting within the scope of his

employment when he sexually assaulted a student.   In Boykin, the

connection between the conduct and the employee’s duties were

too attenuated because the attack was unprovoked, did not serve

the school’s interests in any way, and was not a direct

outgrowth of the school’s authorization that the employee guide

a student throughout the building.

      Hicks argues that it was not foreseeable that Winn and

Kaufman would assault her, wrongfully imprison her, and misuse

the internal complaint system by making false statements to the

Capitol Police.   (Pl.’s Opp’n at 16.)   However, Kaufman and Winn

acted in their supervisory roles when they terminated Hicks and

their attempt to detain Hicks and secure Senate property was
                               -12-

directly connected to their employment.    Evidence that Winn and

Kaufman may have been unauthorized to collect Senate property

would not change the fact that the defendants were acting

incidental to their authorized job function of terminating

Hicks.   Unlike in Penn Central or Mosely where the link between

the tort and the employment was attenuated, the alleged assault

and wrongful imprisonment arose directly from Winn and Kaufman

terminating Hicks.   This case therefore is more comparable to

Caesar v. United States, 258 F. Supp. 2d 1 (D.D.C. 2003).

There, the court found that an intentional tort that occurred

during or immediately following a dispute over how a business

project would be handled by the plaintiff “was ‘triggered by a

dispute over the conduct of the employer’s business’ and ‘arose

naturally and immediately between [a coworker] and [the]

plaintiff . . . in connection with [the coworker’s] job.”    Id.

at 4 (internal quotation marks omitted).   Likewise, in Koch v.

United States, 209 F. Supp. 2d 89, 93 (D.D.C. 2002), the court

also found that the alleged intentional tort was the “direct

outgrowth” of the plaintiff’s criticism of a coworker’s work

performance and was within the scope of employment because the

incident “arose solely because of a dispute about the work

performances of [the plaintiff and his co-worker].”   Here, the

defendants’ employment status did not “merely provide an

opportunity for the [assault and detention] to occur.”   Adams v.
                                -13-

Vertex, Inc., Civil Action No. 04-1026 (HHK), 2007 WL 1020788,

at *7 (D.D.C. Mar. 29, 2007).   Kaufman and Winn’s assault and

detention of Hicks were foreseeable and therefore incidental to

authorized conduct.

     However, Hicks alleges that the defendants3 caused a

Capitol Police internal affairs investigation to be launched

against Officer Hicks by falsifying a report against him,

conduct she alleges was a misuse of the police complaint

procedures and inflicted emotional distress upon her.   (Compl.

¶¶ 24, 36.)   It is not apparent that the defendants’ job duties

as telecommunications operations supervisors would contemplate

launching internal affairs investigations with law enforcement

agencies targeting non-supervisees, much less by use of false

reports.   Hicks maintains that the defendants’ jobs merely

provided the opportunity for them to commit the tort of

intentional infliction of emotional distress for reasons

independent of their employment.   The defendants dispute that

they had any aim to launch any Capitol Police investigation with

any falsified report at all.    They claim that the Senate’s human

resources department asked Winn to document Hicks’ termination,

that he did so, that the Capitol Police asked him for a copy of


     3
       The defendants argue that the complaint “alleges only that
Winn, not Kaufman, gave a false report to the USCP.” (Defs.’
Reply at 8 n.3.) While paragraph 24 mentions that only Winn
falsified the report, paragraph 36 alleges that Winn and Kaufman
misused the internal complaint procedures.
                                -14-

that report, and that he provided it as requested.   (Defs.’

Stmt. of P. & A. in Supp. of Their Mot. to Substit. & Dismiss

(“Defs.’ Mem.”) at 6-7.)

     Whether there was one benign report for the human resources

department as the defendants say, or some different sinister

report as Hicks alleges, cannot be determined from the

pleadings.    At this stage in the litigation, Hicks is “merely

required to plead sufficient facts that, if true, would rebut

the certification” and all allegations are read in Hicks’ favor.

Stokes, 327 F.3d at 1216 (noting that a court would not err “in

dismissing the 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”)

(internal quotation marks omitted and brackets in original).

Hicks’ allegations, if true, would allow a reasonable juror to

conclude that the defendants’ actions did not stem from their

job assignments and were not incidental to conduct authorized by

their employer.    However, this factual dispute, central to

determining the court’s jurisdiction, will have to be resolved

after some limited discovery.

     B.      Use of force

     To determine whether the use of force was within the scope

of employment, “[t]he inquiry is necessarily whether the
                               -15-

intentional tort was foreseeable, or whether it was

‘unexpectable in view of the duties of the servant.’”   Majano v.

Kim (“Majano I”), Civil Action No. 04-201 (RMC), 2005 WL 839546,

at *8 (D.D.C. Apr. 11, 2005), reversed on other grounds by

Majano v. United States (“Majano II”), 469 F.3d 138 (D.C. Cir.

2006) (quoting Restatement (Second) of Agency § 245).   “[A]

broad range of intentional tortious conduct has been found to be

within the scope of employment despite the violence by which

injury was inflicted.   In fact, employers may be held liable for

foreseeable altercations [that] may precipitate violence . . .

even though the particular type of violence was not in itself

anticipated or foreseeable.”   Rasul v. Rumsfeld, 414 F. Supp. 2d

26, 36 (D.D.C. 2006), vacated on other grounds, Rasul v. Myers,

555 U.S. 1083 (2008) (internal quotation marks and citations

omitted).

     For example, the D.C. Court of Appeals in Johnson concluded

that the actions of the laundromat employee who shot a customer

during a dispute over missing shirts were not “unexpectable”

because his job required removing clothes from dryers and this

function “placed [the employee] in a position where it would be

anticipated that problems of the nature described here could

arise.”   Johnson, 434 A.2d at 408-09 (noting that “[i]f a patron

was unable to locate his or her laundry, once having deposited

it, it seems likely that [the employee] would be confronted in
                                -16-

an effort to resolve the matter”).     Johnson was applied in

Majano I.    There, an employee was attempting to enter her

workplace when she was stopped at the entrance by a co-worker,

Mary Majano.   Majano asked to see the employee’s identification,

but the employee pushed Majano out of the doorway and forced her

way into the building.   After both individuals walked down a

thirty-foot hallway, the employee allegedly assaulted Majano by

grabbing and repeatedly pulling a lanyard that was around

Majano’s neck.   The court concluded that where Majano was warned

not to allow unauthorized people to enter the building, a

“physical or verbal altercation between fellow employees over

the manner of entrance to a . . . building . . . is unfortunate

-- and may be administratively-sanctionable -- but nonetheless

expectable.”   Majano I, 2005 WL 839546, at *9.

     Hicks appears to argue that the use of force was not

expected because human resources, not the defendants, was

responsible for collecting agency property and that human

resources has internal procedures for using Capitol Police if

force becomes necessary in termination situations.    (Pl.’s Opp’n

at 16-17.)   The defendants assert that the Senate would expect

force to be used because “[t]erminations are often difficult,

and it is not unusual for an employee who is being terminated to

become upset and confrontational,” and that therefore it was not

unexpectable for Hicks and her supervisors “to have a
                               -17-

confrontation as a result of her immediate termination and her

refusal to return office property.”    (Defs.’ Mem. at 7.)

     Both Majano I and Johnson found force to be foreseeable

based on the duties assigned to the individual defendants and

the possibility of confrontation.     Winn and Kaufman terminated

Hicks as part of their job duties and the termination letter

told Hicks that “[she was] to turn in [her] Senate

identification badge, keys, and any Senate equipment issued to

[her] immediately.”   (Pl.’s Opp’n, Ex. 1 at 1 (emphasis added).)

Although Hicks argues that the Senate had procedures for human

resources to collect property, the focus is not on whether Winn

and Kaufman followed Senate policy, but whether the act was

“unexpectable in view of the duties of the servant.”    Majano I,

2005 WL 839546, at *8 (internal quotation marks omitted).    While

the resulting torts may not have been expected, it was not

“unexpectable” that Winn and Kaufman’s duties of informing Hicks

that she was terminated and required to return Senate property

could result in a confrontation over the manner in which Hicks

was to return that property.   The use of force therefore was

foreseeable.

     C.   Intent to serve the master

     Much like the “nature of conduct” prong above, “[t]he

intent criterion focuses on the underlying dispute or

controversy, not on the nature of the tort, and is broad enough
                               -18-

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 (internal quotation marks omitted).   The intent

prong is satisfied by “even a partial desire to serve the

master.”   Council on Am. Islamic Relations v. Ballenger, 444

F.3d 659, 665 (D.C. Cir. 2006) (emphasis omitted).   “[W]here the

employee is in the course of performing job duties, the employee

is presumed to be intending, at least in part, to further the

employer’s interests.”   Harbury v. Hayden, 444 F. Supp. 2d 19,

34 (D.D.C. 2006) (internal quotation marks omitted).   For

example, in Council on American Islamic Relations, the D.C.

Circuit concluded that a congressman’s allegedly defamatory

statement made during a press interview was within the scope of

his employment because “[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. at 664

(internal quotation marks omitted).   The court found a clear

nexus between speaking to the press and the congressman’s

ability to do his job as a legislator since that ability was

tied in part to his relationship with the public, and the

statement to the press “was incidental to the kind of conduct he

was employed to perform.”   Id. at 664-65.   The fact that an act

may be illegal or unauthorized does not automatically prevent it
                               -19-

from serving the master at least in some part.    Wilson v. Libby,

535 F.3d 697, 712 (D.C. Cir. 2008).

     Whether the agent is acting on behalf of his employer or

acting in furtherance of his own ends depends on the employee’s

intent at the moment a tort occurs and the nature of the attack.

Majano II, 469 F.3d at 142.   An employee who is acting only for

his own “independent malicious or mischievous purpose” is not

intending to serve the employer.   Adams, 2007 WL 1020788, at *8.

Majano II illustrates this inquiry.   The Majano II court

concluded that the nature of the alleged tort could allow a

reasonable jury to impute a purely personal motivation, because

“[t]he assault was violent and unprovoked and took place” after

the employee had walked thirty-feet from the doorway.

Majano II, 469 F.3d at 142.   Unlike the employee’s forcible

entry into the building, which was “motivated, at least in part,

by her desire to fulfill [her] duty [to report to work],” the

employee repeatedly pulling the lanyard could allow a jury to

conclude that she was acting solely for her own purposes.   Id.

     Hicks argues that “[s]ince Winn and Kaufman’s actions were

both violent and designed to thwart Ms. Hicks from returning the

[agency’s] property to Human Resources, it should be assumed

that they had some ulterior, and solely personal, motive for

their tortious conduct.”   (Pl.’s Opp’n at 13.)   Hicks states

that through discovery she would show that Kaufman and Winn
                                 -20-

violated the Sergeant at Arms’s policy by using force against

her and that human resources had the responsibility to collect

agency property from employees and issue receipts to former

employees when property was returned.     (Pl.’s Opp’n, Ex. 2, Rule

56(f) Declaration (“Rule 56(f) Decl.”) at 1, 2 ¶¶ 1-9.)

     Kaufman and Winn may have acted violently or not followed

the Senate’s policy, but violent or unauthorized acts can still

be within the scope of employment.      See Wilson, 498 F. Supp. 2d

at 97-98 (noting that an employer can be liable for an

employee’s illegal acts).   Winn and Kaufman’s attempt to

restrain Hicks arose out of a dispute undertaken at least in

some part on the employer’s behalf.     The defendants had just

notified Hicks of her termination and Hicks was in the process

of returning Senate property until she was denied a receipt.

Winn and Kaufman’s efforts to detain Hicks and collect the

property arose from a dispute originally undertaken at least in

some part to serve the Senate.    The defendants’ actions are

similar to the employee’s act of pushing a co-worker at the

building’s entrance in Majano II, an act which was prompted by

at least some desire of the employee to fulfill her duty to

report to work.   See also Caesar, 258 F. Supp. 2d at 5

(concluding that because the tortfeasor was angered over the

plaintiff’s criticism of her work on a project, the tortfeasor’s

conduct of slamming a door into the plaintiff immediately
                                -21-

following the dispute “was actuated, at least in part to serve

her employer”).    The timing of the assault further informs the

intent analysis.   The physical conduct here occurred soon after

Hicks was terminated, refused to return the agency property, and

attempted to leave the room.   Hicks does not make sufficient

allegations to allow a reasonable jury to conclude that Winn and

Kaufman’s detention of Hicks did not arise out of their

employment duties and was not intended at least in part to serve

the Senate.

     However, the allegations that Winn and Kaufman misused the

Capitol Police internal complaint procedures by having an

internal affairs investigation launched against Officer Hicks

via a false report are sufficient to warrant limited discovery.4

Hicks asserts that if discovery is conducted, the evidence would

show that Winn and Kaufman gave false reports to Capitol Police

in order to harm Hicks and not out of any desire to serve the

Senate.   (Rule 56(f) Decl. at 1, 3 ¶ 14.)




     4
       Winn argues that the plaintiff “has not explained what
cause of action she is asserting” in her allegations about
submitting a memorandum with false statements. (Defs.’ Reply at
8 n.4.) However, the complaint expressly alleges that “[t]hese
actions, alone and/or in combinations [sic] with their misuse of
the Capitol Police internal complaint procedures (by which, on
information and belief, they had an internal affairs
investigation launched against Officer Hicks), resulted in the
intentional infliction of emotional distress upon the Plaintiff.”
(Compl. ¶ 36.)
                                -22-

     Misusing internal complaint procedures and submitting a

report containing false statements are actions that could

“permit[] the imputation of a purely personal motivation[,]”

Majano II, 469 F.3d at 142, and could be viewed as an act not

intended to serve the master.   In Stokes v. Cross, the plaintiff

alleged that the defendants “destroy[ed] critical evidence,

prepar[ed] and submitt[ed] false affidavits by use of threat and

coercion, and engag[ed] in other criminal acts.”   Stokes, 327

F.3d at 1216.   Despite the defendants’ arguments that their

conduct was “incidental to their duty to investigate and report

other officers who fail to render assistance [to another

officer],” the court ordered limited discovery on the scope of

employment issue because the plaintiff made sufficient

allegations that the defendants’ illegal and unauthorized

actions were orchestrated to prevent his promotion, which, if

true, would rebut the Westfall certification.   Id.; see also

Hosey v. Jacobik, 966 F. Supp. 12, 15 (D.D.C. 1997) (stating

that where the plaintiff alleged that the individual defendant

gave materially false information to a background investigator,

if “the Court concluded that [the individual defendant] gave

information to the [investigator] with the sole intent of

protecting his own interests, not those of the Government, then

Plaintiff would carry his burden on the third prong” in

rebutting the certification).
                                 -23-

      The D.C. Circuit has cautioned that limited discovery

should not be conducted in the absence of sufficient allegations

to rebut the certification because discovery is not a “fishing

expedition for facts that might give rise to a viable

scope-of-employment claim.”    Wuterich, 385 F.3d at 386 (emphasis

in original).   However, given Rule 8’s liberal pleading

standards, Hicks’ allegations that Winn and Kaufman misused

internal complaint procedures and that Winn knowingly submitted

a report with false information, if true, could demonstrate that

the defendants were acting outside the scope of their employment

by engaging in unauthorized acts not intended to serve the

Senate.   Therefore, limited discovery on these issues is

warranted.

II.   SOVEREIGN IMMUNITY

      With the United States substituted for Kaufman and Winn for

the assault and false imprisonment claims, Hicks acknowledges

that the United States has not waived sovereign immunity for her

assault and false imprisonment torts and that she is left

without recourse.   (Pl.’s Opp’n at 3).   See also 28 U.S.C.

§ 2680(h)); Majano v. United States, 545 F. Supp. 2d 136, 147

(D.D.C. 2008) (stating that “no claim may be brought against the

United States that arises out of an assault and battery unless

the tort was committed by a federal investigative or law

enforcement officer”).     Because the FTCA’s waiver of sovereign
                               -24-

immunity does not apply to Hicks’ assault and false imprisonment

claims, these claims will be dismissed for lack of subject

matter jurisdiction.

                       CONCLUSION AND ORDER

     Because Hicks has not made sufficient allegations to allow a

reasonable juror to conclude that the defendants’ assault and

restraint of her were outside the scope of their employment, the

United States will be substituted for Winn and Kaufman as to the

assault and false imprisonment claims.    Because, as Hicks

concedes, the FTCA does not waive sovereign immunity with respect

to assault and false imprisonment, the defendants’ motion to

dismiss will be granted as to those claims.   However, because

Hicks has alleged sufficient facts disputing that Winn and

Kaufman acted within the scope of their employment when they

allegedly misused the Capitol Police internal complaint process,

Hicks will be allowed limited discovery as to the intentional

infliction of emotional distress claim.   Accordingly, it is

hereby

     ORDERED that defendants’ motion [12] to substitute the

United States and dismiss Count IV for lack of subject matter

jurisdiction will be GRANTED IN PART and DENIED IN PART.      The

United States is substituted for Winn and Kaufman as to the

assault and false imprisonment claims, and these claims are

dismissed.   The requests to substitute the United States as to
                               -25-

the intentional infliction of emotional distress claim and to

dismiss that claim are denied without prejudice.    It is further

     ORDERED that the parties confer and file by August 6, 2012 a

joint status report and proposed order reflecting a schedule

governing limited discovery on the issue of whether Winn and

Kaufman took actions incidental to conduct authorized by their

employer and whether they acted with intent to serve the Senate

when they participated in the Capitol Police’s internal complaint

process.

     SIGNED this 6th day of July, 2012.


                                                /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
