United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE.
Dedric Brown moves to substitute the United States of America
(the “United States” or “Government”)
as defendant in this case and to dismiss the Amended
Complaint filed by pro se plaintiff Robin Smith for
lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1). For the reasons stated below, Brown's
motion is granted and the case is dismissed.
Smith and Brown were Immigration Service Officers
(“ISOs”) for the United States Citizenship and
Immigration Services (“USCIS”) Naturalization
Unit in December 2014. See Compl ¶¶ 1, 3,
5; Declaration of Phillip A. Savage, dated June 21, 2017
(attached as Ex. 1 to Def. Mem.) (“Savage
Decl.”), ¶ 4. On Thursday, December 11, 2014, from
2:00 p.m. to 4:00 p.m., the USCIS Naturalization Unit held
its holiday party in the Unit's waiting room.
See Compl. ¶ 3. The party, held annually,
serves to promote collegiality among USCIS employees and to
boost employee morale. See Savage Decl. ¶¶
6, 8. USCIS management selects the date of the party and
solicits volunteers for a planning committee that then
coordinates party logistics, including the provision of food
and games. See id. ¶ 9. While the committee
consists of both supervisory and non-supervisory employees,
USCIS management is aware of and exercises authority over
committee decision making. See id. ¶¶ 9,
10. Brown served on the planning committee, and Edna Baquie,
a first-line supervisor and co-chair of the planning
committee, asked Brown if he would volunteer to organize and
run the games at the party, a regular feature of the
Unit's holiday parties. See Compl. ¶ 5;
Declaration of Edna Baquie, dated June 22, 2017 (attached as
Ex. 2 to Def. Mem.) (“Baquie Decl.”), ¶ 3;
Savage Decl. ¶¶ 10-11. Brown agreed and suggested
to the committee a game involving beaded necklaces, in which
participants would be told not to use a particular word and
would forfeit their necklaces if they did so. See
Compl. ¶ 7; Baquie Decl. ¶ 4.
Allegations in the Complaint
following is a summary of the allegations in the complaint:
party, only members of the Naturalization Unit were present.
Compl. ¶ 4. Brown was part of a group of ISOs who
“are known for bringing alcohol to these
parties.” Id. ¶ 6. “This party was
similar to other parties. [Brown's] eyes were glassy, but
his breath didn't smell like alcohol.” Id.
At approximately 2:30 p.m., Brown suggested that the people
at the party play a game in which “[p]articipants were
required to wear Mardi Gras beads, and if someone said a
certain word in conversation, one had to give his or her
Mardi Gras beads to the other person in the
conversation.” Id. ¶ 7. Smith played the
game with one of her coworkers, ISO Dawn Panetta.
Id. ¶ 8. During Smith's conversation with
Panetta, Brown approached Smith and aggressively demanded
that she give her beads to Panetta as part of the game.
Id. ¶ 9. Because Brown was acting aggressively,
Smith ignored him and walked away. Id.
minutes later, Brown approached Smith and again demanded that
she give her beads to Panetta. Id. ¶ 11. After
Smith “ran out of the Room to get away from”
Brown, Brown said “[y]ou can run but you can't
hide!” Id. ¶¶ 11-12.
minutes later, Smith returned to the room and gave all but
one of her beads to ISO Panetta. Id. ¶ 13. When
Brown saw that Smith was still wearing a beaded necklace, he
began to yell at her, demanding that she give Panetta all of
her beads. Id. ¶ 14. Smith ignored Brown's
demands and placed her hands around her single beaded
necklace as she spoke to Panetta. Id. ¶ 15.
put his hands over Smith's hands and demanded that she
“let the beads go.” Id. ¶ 16.
Surprised by Brown's actions, Smith told Brown repeatedly
to stop grabbing her hands. Id. ¶ 17. When
Brown refused to remove his hands, Smith asked him:
“What are you doing?” Id. Brown
responded by demanding that she let go of the beads.
Id. Smith told Brown to stop by saying “[y]ou
are taking this too far” and “I am a
woman.” Id. ¶ 18. But Brown refused to
remove his hands from Smith's neck. Id. After 7
minutes, Smith called for help. Id. ¶ 20. When
another worker approached, Brown “pulled down on”
Smith's hands, causing the beaded necklace around her
neck to break and her arm to be scratched. Id.
after the incident, Smith felt pain around her neck.
Id. ¶ 23. She visited a nurse, complaining of
severe neck pain and that she was having trouble holding her
head upright. Id. ¶ 26. Smith later went to a
hospital to have her neck and arm examined. Id.
¶ 27. She was given a soft cervical collar to wear for
3-4 weeks and was prescribed Robaxin, a pain killer.
Id. ¶ 28.
was out of work for 45 hours, during which she received
benefits under the Federal Employees Compensation Act, 5
U.S.C. § 8101 et seq., (“FECA”).
See Compl. ¶ 30; Declaration of Julia A. Tritz,
dated July 28, 2017 (Docket # 22) (“Tritz
Decl.”), ¶¶ 2, 7; Smith Official Timesheets
(attached as Ex. B to Tritz Decl.). The Office of
Workers' Compensation Programs (“OWCP”) also
reimbursed her for her medical expenses, totaling $485.94,
from January 5, 2015 to April 30, 2015. See Tritz
Decl. ¶ 6. These were short-term benefits, which did not
require a formal adjudication of eligibility. See
Tritz Decl. ¶ 5. After this suit was filed, OWCP issued
a formal determination accepting Smith for FECA coverage.
See id. ¶ 10; Office of Workers'
Compensation Programs Acceptance Letter, dated July 12, 2017
(attached as Ex. D to Tritz Decl.) (“Acceptance
March 8, 2017, two years and three months after the incident,
Smith filed a summons and complaint in New York County Civil
Court, naming Brown as the defendant. See Notice of
Removal, filed Apr. 17, 2017 (Docket # 1) (“Removal
Notice”); Summons with Endorsed Complaint, filed Apr.
17, 2017 (attached as Ex. A to the Removal Notice). The
Government removed the action to this court on April 17,
2017, pursuant to 28 U.S.C. § 2679(d)(2), certifying
that Brown was acting in the scope of his employment during
the time of the incident. See Removal Notice;
Certification of Joon H. Kim, Acting United States Attorney
for the Southern District of New York, dated Apr. 13, 2017
(attached as Ex. B. to Removal Notice) (“Kim
22, 2017, Smith filed an amended complaint. See
Compl. She moved by letter the same day to have this Court
review the Government's certification that Brown was
acting within the scope of his employment.
Government argues that the United States should be
substituted for defendant Brown, because it has certified
that Brown's actions fell within the scope of his
employment. See Def. Mem. at 4-5. The Government
further argues that once this certification is accepted, the
complaint must be dismissed for lack of subject matter
jurisdiction. Def. Mem. at 12. Smith challenges the
Government's certification, see Pl. Letter, and
also opposes its motion to dismiss, see Pl. Response
review whether the United States should be substituted as a
party. We then consider whether the Court has subject matter
jurisdiction over this action.
Certification Under 28 ...