UNITED STATES DIS_TRICT COURT
FOR THE DISTRICT OF COLUl\/[BIA

 

PHYLLIS D. DAY,

Plaintiff,

"- Case No. 1;16-cv_02513 (TNM) .

- ALEX M. AZAR II, Secretary, Department_
. of Health and-Human Services,

Defendant._

 

 

MEMORANDUM OPINION _

On September 30, 2016, Phyllis Day filed a Complaint in the Superior Court of the
. District of Co.lumbia, alleging that her employer, the Departrnent of Health and Human Services,
retaliated against her in 2011 and 21012 for engaging in activity protected by Title VII.l The
` Secretary of the Department removed the case to this court under 28 U.S._C. § l442(a)(1) and

moved to dismiss the case for lack ofjurisdiction, failure to exhaust administrative remedies,`and
- failure to state a claim. Ms. Day, Who hired counsel after filing her Cornplaint, conceded that the
_ pro se Cornplaint 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 heave to Amend Will be denied and the Secretary’s Mo.tion to Dismiss Will be

granted.

 

1 Ms. Day’ s Complaint named Sylvia M. Burwell as the Defendant, `in her official capacity as

Secretary of the Department of Health and Human Services. The current Secretary of the

_ Departrnent, Alex M. Azar II has been substituted as the Dei`endant by operation of Federal Rule
of Civil Procedure 25(d).

 

 

 

I. LEGAL STANDARD .

“Federal courts are courts of limited jurisdiction” and therefore “possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardz'an Life Ins. Co. ofAm., 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 Agoinsr 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 lZ(b)(l), the plaintiff bears the burden of establishing jurisdiction
Georgiadas v. Mcirrin-Trigona, 729 F.Zd 831, 833 n.4 (D.C. Cir. 1984j. 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.” Herberl‘ v. Nat ’l Acad. ofSc_l`s.,
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.” }irz`ckson v. Pardizs, 551
U.S. 89, 94 (2007). 7 7

n II. ANALYSIS

28 U.S.C. § 1442(a)(l) grants federal courts removal jurisdiction over claims against
federal defendantsl But this jurisdiction is derived from the jurisdiction of the court from which
the claims are removed. Merkulov v, Um`ted Sfates Park Polz'ce-, 75 F. Supp. 3d 126, 130 :(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)(l) only to the extent that the Superior
Court itself had jurisdiction to hear those'claims. See Lambert Run Coal Co. v. Bain'more &
Ohio R.R. Co., 258 U.S. 377, l3 82 (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 thisrule 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

A. Title VII Does Not Expressly Authorize the Superior Court_of the District of
Columbia to Hear Claims Against Federal Employers `

“The 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.” ‘Unz'ted States v. Sherwood, 312 U.S. 584,' 586 (1941) (citations omitted).r Title VII Waives
` the sovereign immunity of the United States by authorizing a federal employee Who has l
exhausted his administrative remedies to “file a civil action as provided _in section.ZOOOe-§ 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-16(d). Section 2000e~5(f) clarifies the scope of the
Waiver by specifying Which courts shall have jurisdiction over Titie VII claims lt 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(n.

As the Supreme Court has noted, this statutory text “is completely silent on'any role of

the state courts.” Yellow Freight Sys., Inc. v. Donnelly, 494 UiS. 820, 825 (1990). The clear

meaning of the phrase “United States district court” does not encompass state courts or the courts

3

 

 

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 Supe_rior Court of the District of Columbia is not a
“Unit_ed States court” of such a place. ln interpreting similar language in 18 U.S.C. § 150.3, 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, federai, state, or territorial, into Which- it falls.”
United States v. George, 625 F.2d 1081, 1089 (3d Cir. 1980).2
Although its judges are nominated by the President and confirmed by the Senate, the
District of Columbia court system is “Wholly separate” from the _Article 111 system and is
c"essentially similar to thoseof the local courts found i__n the 50 States of the U`nion.” 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 “Um'ted States court of
a place subject to the jurisdiction of the United States.” 42 U.S.C. § 2000e-5(f) (emphasis l
iadded); see also United States vi Regina, 504 F. Supp. 629, 631 (D. Md. 1980) (holc_ling that “the

Superior Court of the District of Columbia is not a ‘court of the United States’ for purposes of 18

 

2 Am_ong other things, 18 U.S.C. § 1503 prohibits threatening an officer of “any court of the 7
United States.” The Third Circuit held that, although the territorial court for the Virgin lslands
had jurisdiction over both federal and local causes of action, territorial courts Were not courts of
the United States-. See id (citing United States v. Bell, 108 F. Supp. 777 (D_. Alaska 1952)).

- Congress later amended the statute to include territorial courts Within the'detinition of “court of_
the United States,” but did not include the courts of the District of Columbia. See 18 U.S.C.-

§ 23.1. This suggests the possibility that the phrase “United States court of a place subject to the
jurisdiction of the United States” refers to territorial courts and not to the courts of the District of
Columbia. . ` - - - l ' `

4

 

 

E

U.S.C. {§] 1503”). Accordingly, it is not expressly authorized to hear claims against federal §

employers

B. The Supreme Court’S Interpret_a_tion of Title VII Does Not Implicitly Authorize
the Superior Court of the District of Columbia to Hear Claims Against Federal
' Employers

The absence of express consent to be sued in the Superior Court of the District of
Columbia should settle the case. lt is well established that “[a] Waiver of theFederal _
Government’s sovereign immunity must be unequivocally expressed in statutory text and will

not be implied.” Lane v. Pe'mr, 518 U.S. 187, 192 (1996) (citation omitted). Where sovereign

v 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 ina given court, l\/_ls. Day argues that the Supreme Court’s
interpretation of Title VII in Yellow Freight implicitly authorizes the.Supe_rior Court of the

District of Columbia to hear claims against federal employers 1n_support of this argument, she

points to the dissenting opinion in a Fourth Circuit case that considered the same issue. See

Bu[lock v. Napolimno, 666 F.3d 281, 287 (4th Cir. 2012) (Gregory, J., dissenting) (emphasizing
that jurisdiction over fitle VII' claims against privateand_ federal employers are governed by the
same statutory language).

In Yellow Frez'ght, the Supreme Court determined that a state court could hear Title VII
claims against a private employer Yellow Fre.ight, 494 U.S. at 821. l-Iowever, 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 VIl’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 statecourts. Id. at

5_

 

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 l

lnstead, Ye[lo'w Freighr depended on the presumption that state courts have jurisdiction to
adjudicate claims arising under federal law. Id. at 823. Unlil<e 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.” Gulij”sho:/e Co. v. Mobil Oil
Corp., 453 U.S. 473, 478 (1981). The Supreme Court has established that “the presumption of
n concurrent jurisdiction can be rebutted by\an explicitstatut`ory directive, by unmistakable l
implication from legislative history, or by a clear incompatibility between state-court jurisdiction
and federal interests.” TajWin v. Levr`tt, 493 U.S. 455, 459-60 (1990) (quoting GuHOjj‘Shore, 453
U.s. ar 478). l `

The presumption of concurrent state-court jurisdiction was controlling in Yellow Freight
because it was not overcome by the text or history of T.i_tle 'V1_1 and'because there was no clear
incompatibility between state-court jurisdiction and federal interests Yellow Fre'z'ghr, 494 U.S. at
823-25§ Where the defendant is a federal employer, however, state-court jurisdiction comes into
conflict with the federal interests protected by the presumption of sovereign immunity and by the
rule that any waiver of sovereign immunity must be construed narrowly. See Lcme, 518 U.S. `
192. in this context, the presumption of concurrent jurisdiction is not controlling

'As the Fourth Circuit has stated, “The fallacy in [extending] the logic of Yellow Freight
to suits against the United States is that state courts do not have presumptive jurisdiction to
decide suits against the United States.” Bullock, 666 P.3d at 285. To the contrary, as has already
been explained, state courts presumptively lack jurisdiction over claims against the United

States. Io'. This presumption can only be overcome by an “unequivocally expressed” Waiver

 

 

that, even though construed narrowly, grants state courts jurisdiction over the United_States. Ia’_
And Title VII does not contain such a waiver. See i_d. at 286. This determination by the Fourth
Circuit is the only authority the parties have cited that is squarely on lpoint, and 1 concur in the
Fourth Circuit’s conclusion that state courts lack jurisdiction over `l`itle V11 claims against

federal employers

ln sum, Title lVll’s “complete silence” on whether the Superio_r Court of the District-of
Columbia may hear Title VII claims against federal employers leaves the-sovereign immunity of
the United States intact. See id. Neither the Supreme Court’s_ holding in Yellow Frei'ghr nor the
presumption of concurrent jurisdiction on which Yellow Frez'ght relied Can turn the language of
Title VII into an implicit consent for the Superior Court of the District of Columbia to hear such
claims, because an implicit consent is no consent at all under controlling law. See ici ` So the
Superior Court of the District of Columbia lacked jurisdiction over Ms. Day’s Title VII claims

against theSecretary of the Department of Health and Human Services, and 1 cannot derive

removal jurisdiction over these claims under 28 U.S.C. § 1442(a)(1), the statute pursuant to

which Ms. Day’s case was removed to federal -court. See id.- at 286. This is true even though 1
may have had jurisdiction had the case been initially brought in federal court. See Laniberr Rurz
Coal Co., 258 U._S. at-382.
IIl. CONCLUSION
For the reasons explained above, this Court lacks derivative jurisdietion over Ms. Day’s

claims No amendment to her Complaint can cure its jurisdictional deficiency Accordingly,

 

 

Ms. Day’s l\/Iotion for Leave to Amend will be denied and the Secretary’s Motion t_o Dismiss

will be granted A separate order will issue.

 

 

 

Dated: April 2, 2018

United States District Judge

 

