United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
complaint filed on May 12, 2016, in the Superior Court of the
District of Columbia, plaintiff Wilbur Johnson sued the
Washington Metropolitan Area Transit Authority
(“WMATA”) and the “the Smithsonian Archives
Museum” for negligence. He alleges that on May 10,
2013, while a passenger on a city bus, he was injured when
the bus “was hit from the rear” by a
“Smithsonian Archives” van. (Compl., ECF No.
1-1). He demands $325, 000 in damages. (Compl. at 1).
August 18, 2016, D.C. Superior Court dismissed the complaint
against WMATA as time-barred. (See Order, ECF No.
4-2). Shortly thereafter, on August 24, 2016, the Smithsonian
Institution removed the case to this court pursuant to 28
U.S.C. § 1442 (a)(1). (See Not. of Removal, ECF No.
1). The Smithsonian now moves to dismiss under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and Rule 12(b)(6) for failure to state a claim
upon which relief can be granted. (Mot. to Dismiss, ECF No.
4). Upon consideration of Defendant's motion and Reply
(ECF No. 8), and Plaintiff's opposition (ECF Nos. 6, 7,
9), the court agrees that it lacks subject matter
jurisdiction. Accordingly, this case will be dismissed for
the reasons explained more fully below.
district courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (internal citations
omitted). “Subject-matter jurisdiction can never be
waived or forfeited” because it “goes to the
foundation of the court's power to resolve a case.”
Gonzalez v. Thaler, -- U.S. --, 132 S.Ct. 641, 648
(2012); Doe ex rel. Fein v. District of Columbia, 93
F.3d 861, 871 (D.C. Cir. 1996). Consequently, before
proceeding to the merits of a claim, a court must satisfy
itself that it has subject matter jurisdiction over the
claim. See Brown v. Jewell, 134 F.Supp.3d 170, 176
(D.D.C. 2015) (courts “‘have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party'”) (quoting Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006)).
offers two jurisdictional grounds for dismissal: (1) the
doctrine of derivative jurisdiction (Def.'s Mem. at 5-6)
and (2) Plaintiff's failure to exhaust administrative
remedies under the Federal Tort Claims Act
(“FTCA”) (Id. at 6-7). Each suffices to
deprive this court of subject matter jurisdiction.
ago, the Supreme Court observed that “[t]he
jurisdiction of the federal court on removal is, in a limited
sense, a derivative jurisdiction.” Lambert Run Coal
Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382
(1922). Congress has since eliminated derivative jurisdiction
as a barrier to actions removed under 28 U.S.C. § 1441,
see id. § 1441(f), but § 1442, under which
this case was removed, has no parallel provision.
“Accordingly, Federal courts in this District, and
throughout the country, have determined that the doctrine of
derivative jurisdiction still applies to claims removed under
Section 1442.” Merkulov v. United States Park
Police, 75 F.Supp.3d 126, 130 (D.D.C. 2014) (citing
cases); see Lopez v. Sentrillon Corp., 749 F.3d 347,
351 (5th Cir. 2014) (joining the seventh and fourth circuit
courts of appeals in concluding “that, ‘for
whatever reasons [, ] Congress intended to keep the
[derivative jurisdiction] doctrine in place' for removals
other than those under § 1441”) (quoting Rodas
v. Seidlin, 656 F.3d 610, 619 (7th Cir. 2011)
(alterations in original)).
removed case such as this, a federal court's jurisdiction
must “ ‘mirror the jurisdiction that the state
court had over the action prior to removal.' ”
Merkulov, 75 F.Supp.3d at 129 (quoting Palmer v.
City Nat. Bank of West Virginia, 498 F.3d 236, 239(4th
Cir. 2007)). Consequently, “[i]f a State court lacks
subject matter jurisdiction over a suit, the Federal court
likewise lacks jurisdiction over the suit upon removal, even
if the Federal court would have maintained jurisdiction
‘in a like suit originally brought there. . .
.'” Id. (quoting Lambert Run Coal
Co., 258 U.S. at 382). A threshold question for
determining derivative jurisdiction “‘is whether,
prior to removal, the Superior Court . . . had jurisdiction
of the subject matter or of the parties.'”
Cofield v. United States, 64 F.Supp.3d 206, 214
(D.D.C. 2014) (quoting McKoy-Shields v. First Washington
Realty, Inc., No. 11-cv-01419, 2012 WL 1076195,
at *2 (D.D.C. Mar. 30, 2012)).
argues correctly that Plaintiff's negligence action
against the Smithsonian “is subject to the FTCA, which
grants ‘exclusive jurisdiction' to the United
States district courts over civil actions brought against the
United States for monetary damages.” (Def.'s Mem.
at 6, ECF No. 4-1); see Lopez, 749 F.3d at 351
(“The United States has waived its sovereign immunity
to tort liability only under the FTCA[.]”) (citing 28
U.S.C. § 1346(b)(1)). Section 1346(b)(1) authorizes a
lawsuit against the United States for money damages arising
from “personal injury . . . 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.” Because Congress has not consented to the
United States being sued in state court for negligence, the
Superior Court never acquired jurisdiction over either the
subject matter or the Smithsonian as a United States agency.
See Merkulov, 75 F.Supp.3d at 130-31. As a result,
this court “acquires none.” Lambert Run Coal
Co., 258 U.S. at 382.
Exhaustion of Administrative Remedies
if Plaintiff had initially filed the case here, the court
still would be without jurisdiction. As indicated above, the
FTCA is the exclusive basis for Plaintiff's negligence
claim against the Smithsonian. Before filing a lawsuit under
the FTCA, a plaintiff must exhaust his administrative
remedies by presenting the claim “first . . . to the
appropriate Federal agency” and obtaining a final
written denial. 28 U.S.C. § 2675(a). If the agency fails
to issue a final decision within six months after the claim
is submitted, such inaction may “be deemed a final
denial of the claim[.]” Id. The FTCA's
presentment requirement is “jurisdictional.”
Simpkins v. District of Columbia Gov't, 108 F.3d
366, 371 (D.C. Cir. 2007); see Atherton v. United
States, 193 F.Supp.3d 2, 4 (D.D.C. 2016) (noting that
“since ‘compliance with § 2675(a)'s
presentment requirement is a jurisdictional precondition to
filing an FTCA suit in federal district court, '
subject-matter jurisdiction would not exist in an FTCA suit
filed prematurely”) (quoting Mader v. United
States, 654 F.3d 794, 805 (8th Cir. 2011)).
Smithsonian has “no record” that Plaintiff
“filed a claim for injury or damages under the
FTCA[.]” (Decl. of Jessica Lauritzen, ECF No. 4-4). The
attachments to the Complaint include a completed claim form
containing a printed P.O. Box address for claims directed to
the Smithsonian Institution. But the form is not dated and
there is no indication that it was properly addressed and
delivered. (See ECF No. 1-1, p. 3). Most
importantly, nowhere in Plaintiff's opposition has he
addressed, let alone refuted, Defendant's argument that
his claim is unexhausted. Therefore, the court finds that it
lacks “subject matter jurisdiction, or if not
jurisdiction, the functional equivalent of it” to
entertain the FTCA claim. Simpkins, 108 F.3d at 371.
And “in this posture, the court could no more rule in
favor of the government than against it, ”
id., on the non-jurisdictional ground that the claim