The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
Before the Court is third-party defendant United States Postal Service's ("USPS") Motion to Dismiss (Docket No. 2) for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1). Having considered the full briefing on this motion, and for the reasons set forth below, USPS' motion is GRANTED and the claims against USPS are dismissed with prejudice. Additionally, this case will be REMANDED to the Superior Court for the District of Columbia.
On October 3, 2008, plaintiff Sallie McKoy-Shields was injured by a lowered work platform at the entrance of a United States Post Office building. (Third Party Compl. ¶3). In her Second Amended Complaint filed in the Superior Court for the District of Columbia, Plaintiff alleges that defendants First Washington Realty, Inc. and Good Hope Marketplace, L.P.'s, negligence was a direct and proximate cause of her injuries. (Second Amended Compl. ¶ 7). On June 20, 2011, defendants filed a third-party complaint denying all liability for the accident and seeking complete indemnity or contribution from USPS, alleging that USPS was solely responsible for plaintiff's injuries . (Third Party Compl. ¶¶ 5, 6, 7, 10, 14). Subsequently, USPS removed the action to this Court pursuant to 28 U.S.C § 1442(a)(1). (Docket No. 1).
USPS has moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited jurisdiction, with the ability to hear only cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. See Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004). A Rule 12(b)(1) motion is the proper mechanism for raising the issue of whether the doctrine of derivative jurisdiction bars federal jurisdiction. See Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922) (holding that the doctrine of derivative jurisdiction is a jurisdictional bar which deprives federal courts of subject matter jurisdiction).
USPS argues that defendants' claims for indemnification and contribution should be dismissed because this Court lacked subject matter jurisdiction over those claims upon removal from the Superior Court by virtue of the derivative jurisdiction doctrine. "The derivative-jurisdiction doctrine arises from the theory that a federal court's jurisdiction over a removed case derives from the jurisdiction of the state court from which the case originated." Palmer v. City Nat'l Bank of W. Va., 498 F.3d 236, 244 (4th Cir. 2007) (applying derivative jurisdiction doctrine to dismiss action removed under 28 U.S.C. § 1442). As the Supreme Court has explained:
[if] the state court was without jurisdiction over either the subject-matter or the United States, the District Court could not acquire jurisdiction over them by the removal. The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.
Lambert Run Coal, 258 U.S. at 382 (citations omitted); see also Arizona v. Manypenny, 451 U.S. 232, 242 n.17 (1981).
Although Congress has chosen to abrogate the derivative jurisdiction doctrine for removals effectuated under 28 U.S.C § 1441*fn2 , application of the derivative jurisdiction doctrine remains valid where, like here, cases are removed under 28 U.S.C § 1442. See Palmer, 498 F.3d at 246 ("plain language of § 1441(f) limits the abrogation of derivative jurisdiction to removals under § 1441 and . . . the [derivative jurisdiction] doctrine is viable for removals under § 1442); In re Elko County Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997) ("[B]ecause this case was removed from state court pursuant to § 1442, our jurisdiction is derivative of the state court's jurisdiction."); Edwards v. United States Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994) ("The jurisdiction of the federal court upon removal, pursuant to 28 U.S.C. § 1442, is essentially derivative of that of the state court.").
To determine whether this Court lacks subject matter jurisdiction by virtue of the doctrine of derivative jurisdiction, the threshold determination is whether, prior to removal, the Superior Court for the District of Columbia had jurisdiction of the subject matter or of the parties. It is well settled that "the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). The conditional sovereign immunity of the United States extends to its branches and agencies, including the USPS. See Franchise Tax Board v. United States Postal Service, 467 U.S. 512, 517-18 (1984) (suit against USPS requires waiver of sovereign immunity); see also Loeffler v. Frank, 486 U.S. 549, 554 (1988) (same). "Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued." Loeffler, 486 U.S. at 554. Thus, USPS is entitled to sovereign immunity unless Congress waives that immunity and authorizes consent to suit.
The Postal Reorganization Act of 1970 ("PRA"), 39 U.S.C. § 101 et seq., provides that the Federal Tort Claims Act ("FTCA") applies to "tort claims arising out of activities of the Postal Service." 39 U.S.C. § 409(c); 29 U.S.C. § 2679(a). The FTCA constitutes a limited waiver of sovereign immunity with respect to certain common-law-tort claims, and provides that the district courts shall have exclusive jurisdiction ...