AMY BERMAN JACKSON, District Judge.
Plaintiff Chantel Russell brings this action against David Dupree, the Central Intelligence Agency ("CIA"),
The CIA moved to dismiss plaintiff's and defendant State Farm's claims against it for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) on grounds of sovereign immunity or, in the alternative, for summary judgment. [Dkt. # 13].
At all times relevant to this case, David Dupree was employed by the CIA as a chauffeur, working within CIA's Transportation Support Center. Dupree Dep. at 10:21; McMillan Decl. ¶ 4, Compl. ¶ 4. He was an hourly employee and had a standard "tour of duty" from 7:00 a.m. to 3:30 p.m. Dupree Dep. at 59:17-60:10. On September 10, 2008, Dupree left his office at about 6:00 p.m. and began driving home in his government vehicle. Id. at 29:10-30:21; McMillan Decl. at ¶ 6. Oh his way, Dupree stopped at a Chinese Restaurant, where he consumed an unknown quantity of alcohol.
Russell filed the complaint in this case on September 3, 2010. The Court dismissed Count III of the complaint on June 7, 2011. [Dkt. # 21]. The remaining counts allege that Dupree's negligence caused plaintiff's injuries (Count I), that CIA is vicariously liable for Dupree's negligence (Count II), and that State Farm breached its contract with plaintiff by failing to pay her for her injuries.
Defendant CIA has filed its motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court with limited jurisdiction, we begin, and end, with examination of our jurisdiction."). Because "subject-matter jurisdiction is an `Art[icle] III as well as a statutory requirement,... no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).
Under the doctrine of sovereign immunity, the United States is immune to suit unless it explicitly consents to being sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). This immunity extends to the agencies of the federal government, including the CIA. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); see also Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 607 (D.C.Cir.1992). A waiver of immunity is strictly construed in favor of the sovereign. Orff v. United States, 545 U.S. 596,
"[A] plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss." Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C.2006), citing Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C.Cir.2003). Therefore, plaintiff and defendant State Farm bear the burden of establishing that sovereign immunity has been abrogated in order to overcome the CIA's motion to dismiss.
Plaintiff argues that the government has waived its sovereign immunity in this case under the Federal Tort Claims Act, 28 U.S.C. § 1346 (2006) ("FTCA"). See Compl. ¶ 1; Pl.'s Opp. at 3-4. "Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and rendered itself liable." FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (internal quotation marks omitted). This narrow waiver extends only to claims that are:
Id., quoting 28 U.S.C. § 1346(b). Thus, plaintiff and State Farm need to show both that the circumstances in this case would have given rise to liability under D.C. law if the employer were a private individual rather than the CIA, and that the injury was caused while Dupree was acting within the scope of his employment. It is the latter showing that the CIA contests.
"[T]he scope of employment of a federal employee ... is governed by state tort law." Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C.Cir.1994). Because Dupree was employed by the CIA in the District of Columbia and the alleged tort occurred there, the Court will apply District of Columbia law.
In determining scope of employment, the District of Columbia follows the Second Restatement of Agency, which provides in relevant part that:
Restatement of Agency § 228; see Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 (D.C.1987). Thus, "[a]n act is not within the scope of employment if done for the employee's purposes only; unless the tort occurred at least in part as a result of a desire to serve the employer, the employer is not liable." District of Columbia v. Davis, 386 A.2d 1195, 1203 (D.C.1978).
The third factor of the Restatement test is dispositive here because no reasonable juror could find that Dupree's conduct was actuated in any part by a purpose to serve his employer. Dupree was acting solely for personal benefit when he drove home at night from a restaurant under the influence of alcohol. See Smith v. United States, 762 F.Supp. 1511, 1513 (D.D.C.1991) ("On no basis would the Court conclude that drinking and driving after work hours fell within the scope of [the defendant's] employment with the DEA."); Smith v. Grimes, 798 F.Supp. 798, 801-02 (D.D.C.1992) (holding that a DEA special agent, who got into a car accident after stopping to consume alcohol on his way home from work, was acting outside the scope of his employment because stopping to consume alcohol served only his purposes, not his employer's). Plaintiff's and defendant State Farm's argument that Dupree's conduct was meant to serve the CIA because he was "on-call" at the time of the accident is unpersuasive; driving under the influence of alcohol impedes and does not further the driver's ability to respond to calls, and thus the intoxication could not have been motivated by Dupree's intent to serve his employer. Dupree Dep. at 20:3; See Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. 1984) (finding irrelevant whether the employee was "on duty" at the time of the incident in question where the motive was personal).
Furthermore, driving under the influence of alcohol is not conduct "of the kind Dupree was employed to perform." Dupree was assigned as an "exclusive driver for a senior level person at the Agency." Dupree Dep. at 12:1-3. The accident, which occurred while Dupree was on his way home from a restaurant after consuming alcohol, was not "a direct outgrowth" of his job assignment. See Boykin, 484 A.2d at 562. In addition, Dupree was in violation of CIA internal regulations and D.C. law when the accident occurred. See Caudle Decl. ¶¶ 11-12; D.C.Code § 50-2201.05 (2001); Ex. 1 to Def.'s Rep. in Supp. of Mot. for Summ. J. at 2-3; see Sheppard, 640 F.Supp.2d at 35 (finding conduct that violates a law to be not of the kind the employee was employed to perform).
Since the Court finds that plaintiff and defendant State Farm cannot satisfy the
Plaintiff and defendant State Farm argue that the CIA should be held liable because it knew or should have known that Dupree would drive while intoxicated (the theory of "negligent entrustment"). Pl.'s Opp. at 10-12; Def. SF's Opp. at 6-7. But, even assuming that the CIA did know that Dupree had a propensity to drive while intoxicated, such a showing alone would not overcome the government's sovereign immunity defense. To show that the government has waived its sovereign immunity under the FTCA, plaintiff must show both that employer would be negligent under D.C. law if it were a private party and that the employee was acting within his scope of employment at the time of the injurious act. See Meyer, 510 U.S. at 477, 114 S.Ct. 996. A showing that the CIA knew or should have known that Dupree would drive while intoxicated might be sufficient to prove that the employer acted negligently under D.C. law, but it is irrelevant to resolving the question of whether Dupree was acting within the scope of his employment at the time of the accident. The Government's awareness of Dupree's propensity to drive drunk does not transform Dupree's intoxicated driving into an activity actuated by a purpose to serve the CIA. So this argument fails to show that the Court has jurisdiction to hear the claims against the CIA. See Kerns v. United States, 585 F.3d 187, 194 (4th Cir.2009) ("The scope-of-employment issue is thus, on its face, a jurisdictional one — if Scott was acting outside the scope of her employment with the Government, the district court lacks jurisdiction over Kern's FTCA claim.").
State Farm's remaining argument — that the CIA should be held liable for its employee's negligence under the Motor Vehicle Safety Responsibility Act ("MVSRA"), D.C.Code § 50-1301.01 et seq. — is likewise without merit.
Because plaintiff and defendant State Farm fail to show that defendant Dupree was acting within the scope of his employment when the government vehicle he was driving collided with plaintiff's vehicle, the Court will grant defendant CIA's motion to dismiss plaintiff's and State Farm's claims against it for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The motion for summary judgment on other grounds is therefore moot. A separate order will issue.
