Cobb v. United States
| Docket Number | Civil Action 21-2419 (CKK) |
| Decision Date | 07 June 2022 |
| Parties | DONALD L. COBB, Plaintiff v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Columbia |
AMENDED MEMORANDUM OPINION
Plaintiff proceeding pro se, filed a complaint in the Superior Court of the District of Columbia against Dineen Baker (“Baker”), an employee of the United States Attorney's Office for the District of Columbia. Upon certifying that the alleged misconduct fell within the scope of Baker's employment, Defendant removed the complaint to this Court pursuant to 28 U.S.C. § 2679(d)(2). Pending before the Court is Defendant's [5] Motion to Dismiss for lack of jurisdiction and for insufficient service of process. Upon consideration of the pleadings, [1] the relevant legal authorities, and the entire record, the Court shall GRANT Defendant's [5] Motion. This Amended Memorandum Opinion vacates and replaces the [12] Memorandum Opinion entered May 26, 2022.
In his one-page “Statement of Claim, ” Plaintiff summarily alleges that between November 3, 2020 and May 29, 2021, Baker destroyed his “notebook in which he had documented . . . his reasons for why he believed the D.C. Metropolitan Police Department . . . had involved itself in a coverup.” Compl. Plaintiff demands $8.45 in damages for “destruction of his property.” Id. He does not dispute that the claim is “founded on tort based on the alleged destruction of [his] notebook, which he provided to the U.S. Attorney's Office for the purpose of investigation.” Not. of Removal ¶ 3.
On September 27, 2021, Plaintiff moved to remand the case to Superior Court, asserting that Baker had “acted outside her proper role when she willfully destroyed” his property. ECF No. 3 at 1. The Court denied that motion on the grounds that Plaintiff had alleged no facts to rebut the presumption accorded to Defendant's Westfall Declaration. ECF No. 6. Plaintiff then timely filed his opposition to the instant motion. Plaintiff also filed a surreply to Defendant's reply in support of its motion to dismiss, for which the Court granted leave to file nunc pro tunc in its [12] Memorandum Opinion.
To survive a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its claim. See Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is jurisdiction, 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.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), ” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (citations omitted).
“In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as a defendant.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Pursuant to Federal Rule of Civil Procedure 12(b)(5), “if the plaintiff does not effect service on a defendant, then the defendant may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). The plaintiff “bears the burden of proving that she has effected proper service.” Jouanny v. Embassy of France, 220 F.Supp.3d 34, 37-38 (D.D.C. 2016). Insufficient service is a “fatal jurisdictional defect” and grounds for dismissal. Id. at 38.
Defendant first argues that the Court must dismiss the case for lack of derivative jurisdiction. The Court recently addressed, in summary terms, such an argument in Charles v. United States, No. 21-0864 (CKK), 2022 WL 558181 (D.D.C. Feb. 24, 2022) and concluded that derivative jurisdiction is a “non-issue” where 28 U.S.C. § 2679(d)(2) independently confers removal jurisdiction upon a complaint removed to federal court through a Westfall declaration. Id. at *3. In support of its position, Defendant cites a variety of cases from this jurisdiction.[2] All of these cases were removed solely pursuant to 28 U.S.C. § 1442; none involved a Westfall declaration. But see Cofield, 64 F.Supp.3d at 214 (). Other than Cofield's short dictum, it appears on the Court's review that no court of this jurisdiction has ever endorsed Defendant's view. Therefore, and upon further consideration of the legal authorities, the Court reaffirms its holding in Charles.
Congress has created a number of statutes governing removal of certain cases from state court to federal court. Pursuant to 28 U.S.C. § 1444, for example, United States may remove foreclosure actions against it from state court to federal court. Pursuant to 28 U.S.C. § 1442, which Defendant cites for jurisdiction in its Notice of Removal, United States agencies and officers may remove claims against them in state court to federal court. Merkulov v. U.S. Park Police, 75 F.Supp.3d 126, 129 (D.D.C. 2014) (BAH). The Supreme Court has, over the years, either held or noted that “if the state court lacks jurisdiction over the subject matter of the parties, the federal court acquires none upon removal [under section 1442], even though the federal court would have had jurisdiction if the suit had originated there.” See Arizona v. Manypenny, 451 U.S. 232, 242 n.17 (1981) (collecting cases). The federal courts have long applied this requirement as the doctrine of “derivative jurisdiction, ” notwithstanding plenty of criticism by “courts and commentators.” Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314, 1321 (11th Cir. 2021).
As this Court has previously explained in section 1442 cases, “the justification for this derivative jurisdiction doctrine is ‘hardly obvious,' and the doctrine has faced considerable scrutiny.” E.g., Robinson v. United States Dep't of Health & Hum. Res., No. 21-1644, 2021 WL 4798100, at *3 (D.D.C. Oct. 14, 2021) (CKK) (quoting Ricci v. Salzman, 976 F.3d 768, 773 (7th Cir. 2020) (cleaned up)). The doctrine often creates “something of a paradox, ” in which a federal defendant immediately moves to dismiss a case that it had just removed for lack of removal jurisdiction. James v. U.S. Postal Service, 484 F.Supp.3d 1, 4-5 (D.D.C. 2020) (CKK). This “circuitous barrier” raises especially grave concerns for pro se litigants “who may not be well-versed in the technicalities of civil procedure or federal jurisdiction.” Robinson, 2021 WL 4798100, at *3; see also 14C Wright & Miller, Federal Prac. & Proc. § 3722 (4th ed. 2020) (collecting cases and characterizing criticism like this court's as “deserved”). Nevertheless, pursuant to binding precedent, the Court has faithfully applied the derivative jurisdiction doctrine in section 1442 cases. E.g., Robinson, 2021 WL 4798100, at *4; James, 484 F.Supp.3d at 5.
Id. § 2679(d)(2). The Supreme Court has instructed that this statutory provision is jurisdictional; a notice of removal accompanied by a Westfall certification automatically confers removal jurisdiction on the federal court to which the case is removed. See Osborn v. Haley, 549 U.S. 225, 231 (2007) (); see also id. at 253-54 (Souter, J., concurring in part and dissenting in part) .
In fact, removal jurisdiction arising from a Westfall certification is so durable that it may never be lost. As Defendant concedes, the Court held in Osborn that as a matter of statutory construction, a district court must retain removal jurisdiction even upon a finding that the individual defendant was not acting in the course of their employment for the United States and “may not remand the suit to the state court.” Id. at 231; Steele v. Meyer, 964 F.Supp.2d 9, 14 (D.D.C. 2013) (Howell, C.J.) (...
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