Stephen D. Metz v. Bae Systems Technology Solutions & Services Inc .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2014 Decided December 16, 2014
No. 13-7154
STEPHEN D. M ETZ ,
APPELLANT
v.
BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES I NC .,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01694)
Peter C. Cohen argued the cause and filed the briefs for
appellant.
Peter Buscemi argued the cause for appellee. With him on
the brief were Robert J. Smith, Joyce E. Taber, and Lincoln O.
Bisbee.
Before: GARLAND , Chief Judge, TATEL , Circuit Judge, and
GINSBURG , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND .

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G ARLAND , Chief Judge: Appellant Stephen Metz has
presented us with an unusual proposition. Although he brought
this diversity case in federal district court, he would like to have
the dispositive question that he raises on appeal decided not by
this court, but by the District of Columbia Court of Appeals. To
accomplish this, he asks us to certify that question of District of
Columbia law to the Court of Appeals, without addressing the
question ourselves. Because the question on which Metz seeks
certification is neither genuinely uncertain nor of sufficient
public importance to warrant burdening the D.C. Court of
Appeals, we deny his request. And because Metz does not ask
us to independently review the district court’s resolution of that
question, we affirm the judgment of that court.
I
Stephen Metz worked at BAE Systems Technology
Solutions & Services, a defense contractor, for more than four
years. There, he led an engineering and technical services
division that supported long-term acquisition programs for the
U.S. Navy. In February 2012, the company laid him off. A
short time later, he applied for a position at ALION Science and
Technology Corporation, another defense contractor that
sometimes teamed with BAE on defense projects. ALION made
Metz an offer, and he began working there on May 14, 2012.
According to Metz’ complaint,1 when BAE learned he was
working for ALION, BAE threatened Metz and ALION with
legal action on the ground that Metz’ employment with ALION
violated a one-year non-compete agreement between Metz and
1 Because this case comes to us on appeal from the dismissal of
Metz’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),
we accept the complaint’s factual allegations as true. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).

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BAE. ALION responded that it did not view itself as BAE’s
competitor, and it offered to take steps to ensure that there
would be no competition between the two companies as a result
of Metz’ employment with ALION. BAE nonetheless continued
to insist that ALION cease employing Metz. Finally, on June
15, 2012, fearing both legal action and economic retaliation
from BAE, ALION terminated Metz’ employment.
On October 16, 2012, Metz brought suit in the U.S. District
Court for the District of Columbia, alleging that BAE had
tortiously interfered with his at-will employment arrangement
with ALION in violation of District of Columbia law. 2 The
amended complaint based federal jurisdiction on the diversity of
citizenship of the parties. See Am. Compl. ¶¶ 11-12. 3 BAE
moved to dismiss Metz’ complaint, arguing that Metz could not
state a claim for tortious interference with contractual relations
because the District of Columbia does not recognize such a
claim when the plaintiff was an employee at will. The district
court granted BAE’s motion, Metz v. BAE Sys. Tech. Solutions
& Servs., Inc., 979 F. Supp. 2d 26 (D.D.C. 2013), and Metz
timely appealed the dismissal of his tortious interference claim.
On appeal, Metz does not argue the merits of that claim and
does not ask us to reverse the judgment of the district court
based on our view of the merits. Instead, he asks only that we
2 The complaint also contained four other claims, two of which
Metz voluntarily dismissed and two of which the district court
dismissed. See Metz v. BAE Sys. Tech. Solutions & Servs., Inc., 979
F. Supp. 2d 26, 29-33 (D.D.C. 2013). Metz does not raise any of
those claims on this appeal.
3 The complaint also cited 28 U.S.C. § 2201(a) as establishing the
district court’s “jurisdiction to issue declaratory relief.” Am. Compl.
¶ 13. But see infra note 8.

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certify to the D.C. Court of Appeals the question of whether
District of Columbia law “recognize[s] a cause of action for
tortious interference with at will employment against a third
party former employer who procured the plaintiff’s discharge
from his new employer.” Metz Br. 2.4 Reversal will only be
required, he explains, if we do so certify and if, in response, the
D.C. Court of Appeals holds that the District recognizes such a
cause of action. By the same token, Metz acknowledges that, if
we decline to certify the question, we must affirm the judgment
of the district court. See Oral Arg. Recording 12:35.
Accordingly, we limit our consideration to the issue of
certification.
II
A federal court sitting in diversity must apply the
substantive law of the jurisdiction in which it sits. Erie R.R. Co.
4 That is the core question posed by Metz. He also proposes
several embellishments, including asking whether the District
recognizes such a cause of action when the third-party former
employer procured the discharge “for an improper or illegal purpose.”
Metz Br. 2. We do not discuss that embellishment, however, because
just as there is no decision of the D.C. Court of Appeals finding “a
cause of action for tortious interference with at will employment
against a third party former employer who procured the plaintiff’s
discharge from his new employer,” there is no decision finding such
a cause of action where a third party procured the discharge “for an
improper or illegal purpose,” id. Accordingly, like the core question
discussed in the text of this opinion, the embellished question depends
upon the possibility that the D.C. Court of Appeals might adopt an
exception to its “general rule . . . that a tortious interference claim may
not proceed with respect to at will employment.” Reply Br. 3-4; see
infra Part II. And we have held that such a mere possibility is
insufficient to warrant certification of a question to that court. See
Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012).

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v. Tompkins, 304 U.S. 64 (1938). This rule applies to a court
sitting in the District of Columbia. Novak v. Capital Mgmt. &
Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006). “Our duty,
then, is to achieve the same outcome we believe would result if
the District of Columbia Court of Appeals considered this case.”
Id. Ordinarily, we fulfill this obligation by looking to the
published opinions of the D.C. Court of Appeals. Rogers v.
Ingersoll-Rand Co., 144 F.3d 841, 843 (D.C. Cir. 1998).
Under the D.C. Code, however, the
District of Columbia Court of Appeals may answer
questions of law certified to it by . . . a Court of
Appeals of the United States . . . if there are involved
in any proceeding before any such certifying court
questions of law of the District of Columbia which
may be determinative . . . and as to which it appears to
the certifying court there is no controlling precedent in
the decisions of the District of Columbia Court of
Appeals.
D.C. Code § 11-723(a). “The use of such certification
procedures ‘in a given case rests in the sound discretion of the
federal court.’” Joy v. Bell Helicopter Textron, Inc., 999 F.2d
549, 563 (D.C. Cir. 1993) (quoting Lehman Bros. v. Schein, 416
U.S. 386, 391 (1974)). Three considerations lead us to decline
to certify the question that Metz poses.
1. The “‘most important consideration’” is that the question
upon which Metz seeks certification is not “‘genuinely
uncertain.’” Joy, 999 F.2d at 563 (quoting Tidler v. Eli Lilly &
Co., 851 F.2d 418, 426 (D.C. Cir. 1988)); see Schuchart v. La
Taberna Del Alabardero, Inc., 365 F.3d 33, 34 (D.C. Cir. 2004).
Metz maintains that it is uncertain whether District of Columbia
law permits a claim of tortious interference with at-will

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employment against a third party to the at-will arrangement
because there is a conflict between two sets of D.C. Court of
Appeals cases. He acknowledges that three decisions “establish
a general rule in the District of Columbia that a tortious
interference claim may not proceed with respect to at will
employment.” Reply Br. 3-4; see Futrell v. Dep’t of Labor Fed.
Credit Union, 816 A.2d 793, 806-08 (D.C. 2003); McManus v.
MCI Commc’ns Corp., 748 A.2d 949, 957 (D.C. 2000); Bible
Way Church of Our Lord Jesus Christ of the Apostolic Faith v.
Beards, 680 A.2d 419, 432-33 (D.C. 1996). Nonetheless, Metz
contends that three other decisions keep “the door open” to such
claims when the interference is perpetrated by a third party to
the at-will arrangement. Reply Br. 13; see Little v. D.C. Water
& Sewer Auth., 91 A.3d 1020 (D.C. 2014); CASCO Marina
Dev., LLC v. D.C. Redev. Land Agency, 834 A.2d 77 (D.C.
2003); Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads,
Inc., 565 A.2d 285 (D.C. 1989). We do not agree that the state
of the law is “genuinely uncertain.”
The three cases that Metz acknowledges as contrary to his
view rest their holdings on the principle that an at-will employee
does not have an employment contract for purposes of tortious
interference with contractual relations. See Futrell, 816 A.2d at
807 (“Futrell was an at-will management employee, who could
be discharged at any time and for any non-discriminatory
reason. . . . Given our conclusion that no employment contract --
express or implied -- existed between Futrell and [her
employer], she cannot establish a prima facie case of intentional
interference with contractual relations . . . .”); McManus, 748
A.2d at 957 (“It is clear that, as an at-will employee, appellant
did not have a contractual employment relationship she could
use as the basis for a suit for tortious interference with a
contractual relationship.”); Bible Way, 680 A.2d at 433
(“[Plaintiffs] failed to cite in the complaint any facts which, if
taken as true, would rebut the presumption of at-will

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employment. . . . Accordingly, there was no basis for either a
breach of contract or a tortious interference with contract claim
. . . .”). Moreover, two of the three cases involved suits against
third parties to the plaintiffs’ employment arrangements. See
Futrell, 816 A.2d at 798, 807-08; McManus, 748 A.2d at 957-
58.5
Conversely, two of the cases that Metz cites as supporting
his contention that this principle has an exception when the case
is brought against a third party do so only by implication.
Although each allowed such a claim for tortious interference
with an agreement that was terminable at will, neither addressed
the question of whether the at-will nature of the agreement
precluded the claim. See Sorrells, 565 A.2d at 290-91 (holding
only that, although a party cannot interfere with its own contract,
a supervisor who is not an officer of a plaintiff’s employer is not
a party to the plaintiff’s employment contract and therefore can
interfere with it); CASCO, 834 A.2d at 83-84 (reciting the result
in Sorrells, but relying on it only for the proposition that
inducing a failure to perform, rather than a breach of, a contract
is sufficient to establish an element of tortious interference).6
5 One of the Futrell defendants was a bonding company, a third
party to the plaintiff’s employment agreement. Futrell, 816 A.2d at
798, 807-08. Two of the McManus defendants were the plaintiff-
employee’s supervisors, McManus, 748 A.2d at 951-52, a position the
D.C. Court of Appeals regards as not a party to a subordinate’s
employment agreement, see Sorrells, 565 A.2d at 290.
6 Metz acknowledges that “the supervisor in Sorrells, for reasons
unknown, did not directly invoke the at will status of the plaintiff as
a defense to the claim,” but argues that “the effect of Sorrells” was to
permit the claim to proceed. Reply Br. 7. Metz also acknowledges
that “Casco was not an at will employment case,” but submits that it
“is Casco’s discussion of Sorrells that matters.” Id. at 9.

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The third case that Metz cites, Little v. D.C. Water & Sewer
Authority, does not support his contention at all. To the
contrary, Little noted that the appellant in that case
“understandably” did not press his claim for tortious interference
with contractual relations, citing McManus for the proposition
that “‘[a]s an at-will employee, appellant did not have a
contractual employment relationship []he could use as the basis
for a suit for tortious interference with a contractual
relationship.’” Little, 91 A.3d at 1029 & n.10 (quoting
McManus, 748 A.2d at 957). Although Little followed its
citation to McManus with a “but see” citation to Sorrells, the
Little court’s treatment of the two cases indicates that it regarded
McManus as controlling. See id.
Accordingly, rather than being genuinely uncertain, it is
“reasonably clear,” Dial A Car, Inc. v. Transp., Inc., 132 F.3d
743, 746 (D.C. Cir. 1998), that the general rule in the District of
Columbia is that an at-will employment agreement cannot form
the basis of a claim of tortious interference with contractual
relations. See United States v. Old Dominion Boat Club, 630
F.3d 1039, 1047 (D.C. Cir. 2011) (explaining that local law is
not “genuinely uncertain with respect to a dispositive question
. . . . [i]f . . . there is a discernible path for the court to follow”
(quoting Dial A Car, 132 F.3d at 746)). Although Little appears
to recognize that the result in Sorrells is inconsistent with that
rule, no D.C. case holds to the contrary. Metz’ certification
request is thus based merely upon the “possibility that the D.C.
Court of Appeals might adopt [an] exception[] to its general
rule” -- a ground we have held insufficient to warrant
certification. Rollins v. Wackenhut Servs., Inc., 703 F.3d 122,
129 (D.C. Cir. 2012).
Needless to say, nothing we have said would preclude the
D.C. Court of Appeals from adopting the exception Metz seeks
-- or from changing its rule altogether. It might be argued, for

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example, that until a contract terminable at will has been
terminated, “the contract is valid and subsisting, and the
defendant may not improperly interfere with it.” RESTATEMENT
(SECOND ) OF TORTS § 766 cmt. g (1979).7 But the possibility
that the D.C. Court of Appeals might reverse its previous course
if presented with the question anew does not render the question
“genuinely uncertain.”
2. Not only is the question Metz poses insufficiently
uncertain, it is also insufficiently significant. In the past, we
have granted certification where a “‘case is one of extreme
public importance’ in which the District of Columbia has a
‘substantial interest.’” Joy, 999 F.2d at 564 (quoting Eli Lilly &
Co. v. Home Ins. Co., 764 F.2d 876, 884 (D.C. Cir. 1985)); see
Sturdza v. United Arab Emirates, 281 F.3d 1287, 1303 (D.C.
Cir. 2002). We have also certified where we found the question
to be on “a matter of public importance, in which the District of
Columbia has a substantial interest,” without insisting that the
importance be “extreme.” Schuchart, 365 F.3d at 37 (citations
omitted); see also DeBerry v. First Gov’t Mortg. & Investors
Corp., 170 F.3d 1105, 1110 (D.C. Cir. 1999) (certifying a
question where “the answer will have significant effects on
District of Columbia mortgage finance practice”). But however
described, this factor demands that the District’s interest be
7See Haddle v. Garrison, 525 U.S. 121, 127 (1998) (“Th[e]
protection against third-party interference with at-will employment
relations is still afforded by state law today.”); KEETON ET AL .,
P ROSSER AND KEETON ON T ORTS § 129, at 995-96 (5th ed. 1984)
(“[E]minent legal writers to the contrary notwithstanding, the
overwhelming majority of the cases have held that interference with
employment or other contracts terminable at will is actionable, since
until it is terminated the contract is a subsisting relation, of value to
the plaintiff, and presumably to continue in effect.” (footnotes
omitted)).

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something more than that the question is one of District law, else
every diversity case would come within its compass. Yet, Metz’
briefs contain no argument whatsoever that the question he
poses is one of substantial interest to the District.
Moreover, an even higher threshold of importance to the
District applies here. As Metz acknowledges, on his theory --
that there are two lines of conflicting District precedent on the
question -- the only way the D.C. Court of Appeals could
resolve the alleged uncertainty would be to hear the case en
banc. Oral Arg. Recording 25:23. And we do not discern any
interest sufficiently important to impose that kind of burden on
the D.C. Court of Appeals.
3. Still another factor counsels against granting certification
in this case. The plaintiff “chose to litigate” this case in federal
district court, “fully aware” of the two lines of District precedent
that he sees as conflicting. Tidler, 851 F.2d at 426. And as we
have said before, “‘[o]ne who chooses the federal courts in
diversity actions is in a peculiarly poor position to seek
certification.’” Id. (quoting Cantwell v. Univ. of Mass., 551 F.2d
879, 880 (1st Cir. 1977)); see WRIGHT , M ILLER , COOPER &
AMAR , FEDERAL PRACTICE & PROCEDURE § 4248, at 509 (3d ed.
2007) (“[T]he court should be slow to honor a request for
certification from a party who chose to invoke federal
jurisdiction.”).
This is not to say that we will always decline to certify a
question when the requester is a plaintiff who sued in federal
district court (or a defendant who removed the case to that
court). Indeed, we have certified questions in such
circumstances. See, e.g., Doe ex rel. Fein v. District of
Columbia, 93 F.3d 861, 872-76 (D.C. Cir. 1996) (granting a
request to certify by a plaintiff who filed in federal district
court). But in this case, the factor is magnified by the manner in

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which Metz has attempted to structure his case. Although he
filed his suit in federal district court and presented his initial
arguments there, he now seeks appellate review only by the D.C.
Court of Appeals, expressly declining to ask this court to
address the merits of his argument. Metz explains that he
adopted this approach because it was more intellectually honest
in light of what he perceived as the confused state of District of
Columbia law. Oral Arg. Recording 5:03. Although we
appreciate Metz’ candor, if it were important to have the D.C.
Court of Appeals clarify District of Columbia law, he could and
should have brought his suit in the Superior Court of the District
of Columbia. He did not do so, and we are not inclined to
permit parties to so easily mix and match their favorite
combinations of trial and appellate courts. 8
8 In his reply brief and at oral argument, Metz suggested that he
brought his suit in federal district court because it contained a federal
cause of action, namely a claim for relief under the federal Declaratory
Judgment Act, 28 U.S.C. § 2201. The Declaratory Judgment Act,
however, does not “provide a cause of action.” Ali v. Rumsfeld, 649
F.3d 762, 778 (D.C. Cir. 2011). Moreover, “[i]t is a well-established
rule that the Declaratory Judgment Act is not an independent source
of federal jurisdiction. Rather, the availability of [declaratory] relief
presupposes the existence of a judicially remediable right.” Id.
(internal quotation marks omitted); see Medtronic, Inc. v. Mirowski
Family Ventures, LLC, 134 S. Ct. 843, 848 (2014); Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Indeed, Metz’
complaint therefore appropriately relies only on 28 U.S.C. § 1332(a)
(diversity jurisdiction) as the source of the district court’s jurisdiction;
it does not cite 28 U.S.C. § 1331 (federal question jurisdiction). See
Am. Compl. ¶¶ 11-17. Nor did Metz need to file in federal court to
obtain declaratory relief; the Superior Court of the District of
Columbia has authority to provide such relief as well. See D.C. S UP.
CT. R. CIV. P. 57 & cmt. (citing D.C. Code. § 11-921).

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III
For the foregoing reasons, we decline Metz’ request to
certify his proposed question to the District of Columbia Court
of Appeals. Because Metz does not ask us to evaluate the merits
of that question ourselves, the district court’s judgment is
Affirmed.

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