United States District Court, District of Columbia
PHYLLIS D. DAY, Plaintiff,
ALEX M. AZARII, Secretary, Department of Health and Human Services, Defendant.
N. MCFADDEN UNITED STATES DISTRICT JUDGE
September 30, 2016, Phyllis Day filed a Complaint in the
Superior Court of the District of Columbia, alleging that her
employer, the Department of Health and Human Services,
retaliated against her in 2011 and 2012 for engaging in
activity protected by Title VII. The Secretary of the
Department removed the case to this court under 28 U.S.C.
§ 1442(a)(1) and moved to dismiss the case for lack of
jurisdiction, failure to exhaust administrative remedies, and
failure to state, a claim. Ms. Day, who hired counsel after
filing her Complaint, conceded that the pro se
Complaint failed to state a claim and moved for leave to
amend her Complaint. Because amendment would be futile in
light of the Court's lack of jurisdiction over the case,
Ms. Day's . Motion for Leave to Amend will be denied and
the Secretary's Motion to Dismiss will be granted.
courts are courts of limited jurisdiction" and therefore
"possess only that power authorized by Constitution and
statute." Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Accordingly, jurisdiction
is a prerequisite that must be satisfied before proceeding to
the merits, and a federal court must dismiss any action over
which it determines that it lacks jurisdiction. Moms
Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir.
2007); see also Fed. R. Civ. P. 12(h)(3). On a
motion to dismiss for lack of jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), the plaintiff bears the burden
of establishing jurisdiction. Georgiades v.
Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984).
A plaintiff may rely on facts outside the pleadings to
satisfy this burden, as "the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts."
Herbert v. Nat'l Acad. of Scis., 974.F.2d 192,
197 (D.C. Cir. 1992): The Court construes pro se
filings liberally, holding them "to less stringent
standards than formal pleadings drafted by lawyers."
Erickson v. Pardus, 551 U.S. 89, 94(2007).
U.S.C. § 1442(a)(1) grants federal courts removal
jurisdiction over claims against federal defendants. But this
jurisdiction is derived from the jurisdiction of the court
from which the claims are removed. Merkulov v. United
States Park Police, 75 F.Supp.3d 126, l3O. (D.D.C. 2014)
(holding that the doctrine of derivative jurisdiction applies
to removal under Section 1442 and collecting cases that hold
Congress's abrogation of the doctrine of derivative
jurisdiction with respect to removal under 28 U.S.C. §
1441 does not impact the doctrine's application to
Section 1442). Accordingly, this Court has jurisdiction over
claims removed from the Superior Court of the District of
Columbia under Section 1442(a)(1) only to the extent that the
Superior Court itself had jurisdiction to hear those claims.
See Lambert Run Coal Co. v. Baltimore & Ohio R.R.
Co., 258 U.S. 377, 382 (1922) ("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.").
Applying this rule to the case at hand, my jurisdiction over
Ms. Day's claims depends on whether the Superior Court of
the District of Columbia has jurisdiction to hear Title VII
claims against federal employers.
Title VII Does Not Expressly Authorize the Superior Court of
the District of Columbia to Hear Claims Against Federal
United States, as sovereign, is immune from suit save as it
consents to be sued, and the terms of its consent to be sued
in any court define that court's jurisdiction to
entertain the suit." United States v. Sherwood,
312 U.S. 584, 586 (1941) (citations omitted). Title VII
waives the sovereign immunity of the United States by
authorizing a federal employee who has exhausted his
administrative remedies to "file a civil action as
provided in section 2000e-5 of this title" against
"the head of the department, agency, or unit" by
which he is employed. 42 U.S.C. § 2000e-16(c) (emphasis
added). But this waiver is subject to the provisions of 42
U.S.C. § 2000e-5(f) through (k). 42 U.S.C. §
2000e-l6(d). Section 2000e-5(f) clarifies the scope of the
waiver by specifying which courts shall have jurisdiction
over Title VII claims. It states, "Each United States
district court and each United States court of a place
subject to the jurisdiction of the United States shall have
jurisdiction of actions brought under this subchapter."
42 U.S.C. § 2000e-5(f).
Supreme Court has noted, this statutory text "is
completely silent on any role of the state courts."
Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820,
825 (1990). The clear meaning of the phrase "United
States district court" does not encompass state courts
or the courts of the District of Columbia. And although the
District of Columbia is of course "a place subject to
the jurisdiction of the United States, " the Superior
Court of the District of Columbia is not a "United
States court" of such a place. In interpreting similar
language in 18 U.S.C. § 1503, the Third Circuit has
explained that whether a court is a "court of the United
States" depends on its "nature as an institution,
the classification, federal, state, or territorial, into
which it falls." United States v. George, 625
F.2d 1081, 1089 (3d Cir. 1980).
its judges are nominated by the President and confirmed by
the Senate, the District of Columbia court system is
"wholly separate" from the Article III system and
is "essentially similar to those of the local courts
found in the 50 States of the Union." Palmore v.
United States, 411 U.S. 389, 408-09 (1973). So its
nature is that of "a local court system."
Id. Congress created it "primarily to concern
itself with local law and to serve as a local court system
for a large metropolitan area." Id. at 408. And
Congress has directed that the Superior Court of the District
of Columbia be considered a state court for removal purposes.
28 U.S.C. § 1451(1). Thus, the Superior Court of the
District of Columbia is not a "United States
court of a place subject to the jurisdiction of the
United States." 42 U.S.C. § 2000e-5(f) (emphasis
added); see also United States v. Regina, 504
F.Supp. 629, 631 (D. Md. 1980) (holding that "the
Superior Court of the District of Columbia is not a
'court of the United States' for purposes of 18
U.S.C. [§] 1503"). Accordingly, it is not expressly
authorized to hear claims against federal employers.
The Supreme Court's Interpretation of Title VII Does Not
Implicitly Authorize the Superior Court of the District of
Columbia to Hear Claims Against Federal Employers
absence of express consent to be sued in the Superior Court
of the District of Columbia should settle the case. It is
well established that "[a] waiver of the Federal
Government's sovereign immunity must be unequivocally
expressed in statutory text and will not be implied."
Lane v. Pena, 518 U.S. 187, 192 (1996) (citation
omitted). Where sovereign immunity has been waived, the
waiver "will be strictly construed, in terms of its
scope, in favor of the sovereign." Id. But,
despite the fact that sovereign immunity cannot be waived
through implicit consent to be sued in a given court, Ms. Day
argues that the Supreme Court's interpretation of Title
VII in Yellow Freight implicitly authorizes the
Superior Court of the District of Columbia to hear claims
against federal employers. In support of this argument, she
points to the dissenting opinion in a Fourth Circuit case
that considered the same issue. See Bullock v.
Napolitano, 666 F.3d 281, 287 (4th Cir. 2012) (Gregory,
J., dissenting) (emphasizing that jurisdiction over Title VII
claims against private and federal employers are governed by
the same statutory language).
Yellow Freight, the Supreme Court determined that a
state court could hear Title VII claims against a private
employer. Yellow Freight, 494 U.S. at 821. However,
it did not specifically address the jurisdiction of state
courts over Title VII claims against federal
employers-employers who enjoy the benefit of sovereign
immunity except to the extent that immunity is expressly
waived. Importantly, Yellow Freight did not depend
on a determination that Title VII's text authorizes state
courts to hear Title VII claims: The Supreme Court
acknowledged that the text of Title VII says nothing about
the jurisdiction of state courts. Id. at 825. Thus,
the Court's determination did not depend on a textual
analysis that would apply with equal force to both private
and federal employers.
Yellow Freight depended on the presumption that
state courts have jurisdiction to adjudicate claims arising
under federal law. Id. at 823. Unlike the
presumption of sovereign immunity, which can only be overcome
by an express waiver, this presumption of concurrent
jurisdiction may be overcome "either explicitly or
implicitly." Gulf Offshore Co. v. Mobil Oil
Corp.,453 U.S. 473, 478 (1981). The Supreme Court has
established that "the presumption of concurrent
jurisdiction can be rebutted by an explicit statutory
directive, by unmistakable implication from legislative
history, or by a clear incompatibility ...