Jordan v. Ormond ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONSUELO JORDAN,
Plaintiff,
V. Case No. 1:21-cv-2491 (RCL)
UNITED STATES OF AMERICA,!
Defendant.
)
MEMORANDUM OPINION
In March 2021, pro se plaintiff Consuelo Jordan, filed a complaint in the Superior Court -
of the District of Columbia against Jasper Ormond (“Ormond”), whom she identifies as the former
Interim Director of the Court Services and Offender Supervision Agency for the District of
Columbia (“CSOSA”). Compl., ECF No. 1-2. In September 2021, an authorized United States
official certified, pursuant to the Westfall Act, that at all relevant times of the alleged conduct
Ormond was acting within the scope of his federal employment, ECF No. 1-3, and the case was
removed to this Court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446, Not. of Removal, ECF No.
1. See D.C. Code § 24—133(a) (establishing CSOSA “within the executive branch of the Federal
Government”).? The United States has moved to dismiss under Federal Rules of Civil Procedure
By substitution.
Under the Westfall Act, 28 U.S.C. § 2679(d), when the U.S. Attorney General certifies
that the individual defendant is operating within the scope of his office, the “employee is dismissed
from the action and the United States is substituted as defendant in place of the employee.” Osborn
v. Haley, 549 U.S. 225, 230 (2007). Upon certification, which “conclusively establish[es] scope
of office or employment for purposes of removal,” the civil action “shall be removed” to the
appropriate federal district court. 28 U.S.C. § 2679(d)(2).
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12(b)(1), 12(b)(5), and 12(b)(6). Def.’s Mot., ECF No. 6. For the following reasons, the Court
will GRANT the motion and DISMISS the case for lack of jurisdiction.
I. BACKGROUND
Plaintiff sued Ormond, alleging, among other wrongs, “sexual conduct, gross conduct,
harassment, [and] job discrimination.” Compl. 4.> The supporting facts, to the extent intelligible,
allege multiple bizarre occurrences, see Def.’s Mem.; ECF No. 6-1 at 7, 14 (summarizing
allegations), for which plaintiff demands $138 million. Compl. 3. This is not plaintiffs first
lawsuit in this district. See, e.g. Jordan v. United States, No. 1:20-cv-2205 (UNA),
2020 WL 5861411, at *1 (D.D.C. Oct. 1, 2020) (dismissing plaintiff's “rambling and disjointed”
complaint alleging “the misuse of a District of Columbia government seal, discrimination based
on age and race, threats to Tae and kill plaintiff, and denial of plaintiff's demand for pension
benefits, among others,” and demanding $138 million); Jordan v. Stokes, No. 1:21-cv-0326 (UNA)
(D.D.C. Dec. 12, 2021 (dismissing plaintiff's complaint that “skips from one topic to another,
without alleging facts sufficient to articulate a single colorable legal claim’’); Jordan v. Quander,
882 F. Supp. 2d 88, 98 (D.D.C. 2012) (concluding “[o]n careful review of [plaintiff's] complaint,
and its vague and unsupported allegations of harassment, threats, assaults and government
surveillance . . . that the balance of plaintiff's claims must be dismissed as frivolous”). But the
posture of this case, i.e., on removal, is distinctive.
Il. LEGAL STANDARD
Under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure, courts must
dismiss any claim over which they lack subject matter jurisdiction. Rule 12(b)(6), by contrast,
requires courts. to dismiss any claim upon which relief could not be granted even if jurisdiction
3 All page citations are those assigned by the electronic case filing system.
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was proper. Fed. R. Civ. P. 12(b)(6). When Rules 12(b)(1) and 12(b)(6) are invoked together, as
they are here, a court must first address the issues encompassed by Rule 12(b)(1), as those issues
implicate the court’s ability to hear the case at all. See Lovitky v. Trump, 949 F.3d 753, 763 (D.C.
Cir. 2020) (“[W]hen a court lacks subject-matter jurisdiction .. . it has no authority to address the
dispute presented.” (internal quotation marks and citation omitted))).
I. DISCUSSION
Defendant argues, among other grounds for relief, that dismissal of this removed action is
compelled under the derivative jurisdiction doctrine. Def.’s Mem. 17-20. The Court agrees.
Section 1442(a) of Title 28 of the U.S. Code authorizes federal defendants who are sued in
state court to remove the action to a federal district court. But under the derivative jurisdiction
doctrine, the federal court may hear the underlying claim only if the state court had jufisdiction to
hear it. Day v. Azar, 308 F. Supp. 3d 140, 142 (D.D.C. 2018) (citing Lambert Run Coal Co. v.
Baltimore, 258 U.S. 377, 382 (1922)); see Merkulov v. U.S. Park Police, 75 F. Supp. 3d 126, 130
(D.D.C. 2014) (notwithstanding Congress’s explicit elimination of derivative jurisdiction as a
barrier to general removals by virtue of 28 U.S.C. § 1441(f), “[fJederal courts in this District, and
throughout the country, have determined that the doctrine of derivative jurisdiction still applies to
claims removed under Section 1442” (collecting cases))).> Consequently, this Court must first
4 The “term ‘[s]tate court’ includes the Superior Court of the District of Columbia.” 28
ULS.C. § 1442(d)(6).
: Although phrased as the doctrine of derivative jurisdiction, some courts have concluded
that the doctrine is more accurately understood not as a limit upon a court’s subject matter
jurisdiction but rather as a “mere defect in the process by which a case reaches federal court.”
Rodas y. Seidlin, 656 F.3d 610, 621 (7th Cir. 2011). Nevertheless, these courts have concluded
that if “‘a defendant timely raises the derivative jurisdiction doctrine, it erects a mandatory bar to
the court’s exercise of federal jurisdiction.” Ricci v. Salzman, 976 F.3d 768, 774 (7th Cir. 2020).
Here, the Court need not address whether this constitutes a defect in subject-matter jurisdiction
because defendants timely raised their objection upon removal. See ECF No. 1; ECF No. 6.
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resolve “the threshold question of whether, prior to removal, [the D.C. Superior Court] had
jurisdiction of the subject matter or of the parties.” Merkulov, 75 F. Supp. 3d at 130 (internal
quotation marks and citations omitted). As explained below, the answer is no.
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.”
United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). This doctrine applies to
federal agencies and employees sued in their official capacities. “To bring a claim against the
United States, a plaintiff must identify an unequivocal waiver of sovereign immunity[,] and
[c]ourts are required to read waivers of sovereign immunity narrowly and construe any ambiguities
.. in favor of immunity.” Franklin-Mason v. Mabus, 742 F.3d 1051, 1054 (D.C. Cir. 2014)
(citation omitted)). A waives of sovereign immunity “must be unequivocally expressed in
statutory text[,]” Lane v. Pena, 518 U.S. 187, 192 (1996), and “‘it rests with Congress to determine
“not only whether the United States may be sued, but in what courts the suit may be brought[,]’”
Franklin-Mason, 742 F.3d at 1054 (quoting Minnesota v. United States, 305 U.S. 382, 388 (1939)).
“[S]tate courts do not have presumptive jurisdiction to decide suits against the United States.”
Bullock v. Napolitano, 666 F.3d 281, 285 (4th Cir. 2012).
With respect to plaintiff's claim for monetary relief, Congress generally has waived
sovereign immunity under (1) the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-
80, see Horn v. U.S. Dep’t of Veterans Affs., 941 F. Supp. 2d 137, 139 (D.D.C. 2013), aff'd,
No. 13-5144, 2013 WL 5975966 (D.C. Cir. Oct. 17, 2013) (“The FTCA is the exclusive remedy
for seeking monetary damages against the United States for certain torts.”), and (2) the Tucker
Act, 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). But neither Act eranite Jurisdiction to state courts to hear
permissible claims. See 28 U.S.C. § 1346(b)(1) (conferring “exclusive jurisdiction” over FTCA
claims in the federal district court); Palacios v. Spencer, 906 F.3d 124, 127 (D.C. Cir. 2018)
(“Under the Tucker Act, the Court of Federal Claims . . . [has] exclusive jurisdiction over” claims
exceeding $10,000). Consequently, this Court “cannot derive” jurisdiction from the D.C.
Superior Court since that court never had jurisdiction to hear plaintiffs claim for monetary relief.
Day, 308 F. Supp. 3d at 145; see Cofield v. United States, 64 F. Supp. 3d 206, 214-15 (D.D.C.
2014) (“[T]he Superior Court did not have jurisdiction over Plaintiffs’ claims against the Federal
Defendants in the first place, and given that this matter was removed to federal court under 28
U.S.C. §§ 1442 and 1446, this Court cannot assert jurisdiction over them on removal.”).
To the extent that the allegation of “job discrimination” suggests claims based on plaintiff's
status as a federal employee, the result is the same. This is because the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.),
and related employment statutes, are the exclusive avenues for federal employees seeking redress
of employment disputes. Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009).
And laws proscribing discrimination in federal employment do not confer jurisdiction upon state
courts to hear permissible claims. See Williams v. Perdue, 386 F. Supp. 3d 50, 54 (D.D.C. 2019)
(Title VII “identifies the courts that have jurisdiction to hear Title VII claims [as] ‘[eJach United
States district court and each United States court of a place subject to the jurisdiction of the United
States[.]’”) (quoting 42 U.S.C. § 2000e-5(f)); Bullock, 666 F.3d at 284 (“Congress waived
6 The Tucker Act, ch. 359, 24 Stat. 505 (1887), is codified as amended in scattered sections
of Title 28 of the United States Code. The Act authorizes an appropriate federal court “to render
judgment upon any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding in
tort.” 28 U.S.C. §§ 1346(a)(2), 1491(a)(1) (emphasis added). The so-called Little Tucker Act
grants “concurrent jurisdiction to the district courts and the Court of Federal Claims in any civil
action against the United States not exceeding $10,000[.]” Franklin-Mason, 742 F.3d at 1055.
sovereign immunity for Title VII suits brought by federal employees against the United States, but
it explicitly provided for jurisdiction only in federal courts.”).
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT the United States’ motion to dismiss
and DISMISS Jordan’s complaint WITHOUT PREJUDICE. A separate order accompanies this
Memorandum Opinion. : -
/s/
ROYCE C. LAMBERTH
Date: May aI. 2022 United States District Judge