Willie Bullock v. Janet Napolitano

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIE D. BULLOCK, 
Plaintiff-Appellant,
v.
JANET NAPOLITANO, Secretary,  No. 10-1222
United States Department of
Homeland Security,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, Senior District Judge.
(5:09-cv-00319-H)
Argued: October 25, 2011
Decided: January 23, 2012
Before NIEMEYER, GREGORY, and AGEE,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Agee joined. Judge Gregory
wrote a dissenting opinion.
COUNSEL
ARGUED: James Edward Hairston, Jr., HAIRSTON LANE
BRANNON, PA, Raleigh, North Carolina, for Appellant. Seth
2 BULLOCK v. NAPOLITANO
Morgan Wood, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: George E. B. Holding, United States Attorney, Jenni-
fer May-Parker, Joshua B. Royster, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTOR-
NEY, Raleigh, North Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
After Willie Bullock filed this racial discrimination action
under Title VII of the Civil Rights Act of 1964 in a North
Carolina state court, naming as the defendant the Secretary of
the U.S. Department of Homeland Security, the Secretary
removed the case to federal court under 28 U.S.C. § 1442(a).
She then filed a motion to dismiss, claiming that she did not
waive sovereign immunity so as to be subject to suit in state
court and, therefore, the state court did not have subject-
matter jurisdiction. She also claimed that because the removal
process itself did not create jurisdiction in federal court, the
federal court likewise did not have subject-matter jurisdiction
under the doctrine of derivative jurisdiction. The district court
agreed and granted the Secretary’s motion to dismiss.
We conclude that because the United States and the Secre-
tary of Homeland Security did not consent to be sued in a
North Carolina state court under Title VII, the state court
lacked subject-matter jurisdiction. Inasmuch as removal to
federal court, under the doctrine of derivative jurisdiction, did
not cure that jurisdictional defect, we affirm the district
court’s order.
I
In 2006 Willie Bullock, an African-American male, was
hired into the federal air marshal program and, for training,
BULLOCK v. NAPOLITANO 3
was sent to a federal law enforcement training center in New
Mexico. While at the training center, Bullock suffered inju-
ries, diagnosed as shin splints, that restricted his ability to par-
ticipate fully in some of the training activities. Shortly before
completion of the training program, Bullock was dismissed
from the program, being advised that when he recovered, he
would have to complete the entire seven-week training pro-
gram again if he wished to become an air marshal. Bullock
claims that because other Caucasian trainees were allowed to
graduate from the program despite having injuries that simi-
larly limited their participation in training exercises, he was
discriminated against on account of his race, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq.
Bullock commenced this action against Janet Napolitano,
the Secretary of the U.S. Department of Homeland Security,
filing his complaint in a North Carolina state court (in Wake
County), alleging violations of Title VII and related state law.
The Secretary removed the case to federal court under 28
U.S.C. § 1442(a)(1) as a suit against a federal officer in her
official capacity, and then she filed a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject-
matter jurisdiction. The Secretary claimed that because Bul-
lock sought monetary damages against the United States or its
agencies, his action was barred by sovereign immunity, which
deprived the state court of subject-matter jurisdiction.
Because the federal court did not acquire jurisdiction by
removal of the action, the Secretary asserted that, under the
doctrine of derivative jurisdiction, the claim had to be dis-
missed. The Secretary also requested that Bullock’s state law
claims be dismissed as preempted by Title VII.
The district court granted the Secretary’s motion, finding
that Title VII preempted Bullock’s state law claims and that,
with respect to Title VII, the United States had not consented
to be sued in state court. Because the state court lacked
subject-matter jurisdiction, so too did the federal court under
4 BULLOCK v. NAPOLITANO
the doctrine of derivative jurisdiction. By order dated January
19, 2010, the district court dismissed this action.
This appeal followed.
II
Bullock contends first that the North Carolina state court
had jurisdiction over his Title VII claim because Congress
waived sovereign immunity for its discriminatory acts as an
employer. See 42 U.S.C. § 2000e-16; Library of Cong. v.
Shaw, 478 U.S. 310, 319 (1986) (abrogated by statute on
other grounds). Bullock argues that because "Title VII con-
tains no language that expressly strips the state courts of their
presumptive jurisdiction," state courts have concurrent juris-
diction with federal courts over Title VII actions. See Yellow
Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823 (1990).
The government contends that Yellow Freight applies only
to private employers and not to the United States and its agen-
cies. Yellow Freight did construe Title VII to allow suits in
state court against private employers because (1) federal and
state courts are presumed to have concurrent jurisdiction over
cases arising under the laws of the United States and (2) Title
VII contains no language stripping state courts of their "pre-
sumptive jurisdiction." See Yellow Freight, 494 U.S. at 823.
But the government contends that the presumption of concur-
rent state jurisdiction cannot effect an implied waiver of sov-
ereign immunity because any waiver must be unequivocally
expressed in a statutory provision and strictly construed in
favor of the United States. See Lane v. Pena, 518 U.S. 187,
192 (1996).
We begin with the statutory language of the waiver in Title
VII. Title VII creates the "exclusive, pre-emptive administra-
tive and judicial scheme for the redress of federal employ-
ment discrimination." Brown v. Gen. Servs. Admin., 425 U.S.
820, 829 (1976). In 1972, Congress amended Title VII to pro-
BULLOCK v. NAPOLITANO 5
vide that a federal employee, who has exhausted his adminis-
trative remedies, "may file a civil action as provided in
section 2000e-5 of this title" against the "head of the depart-
ment, agency, or unit, as appropriate," 42 U.S.C. § 2000e-
16(c) (emphasis added), and that "the provisions of section
2000e-5(f) through (k) . . . shall govern civil actions brought
hereunder," id. § 2000e-16(d). The Supreme Court has held
that with these 1972 amendments, Congress waived sovereign
immunity, allowing the United States and its agencies to be
sued for employment discrimination. Shaw, 478 U.S. at 319.
The waiver thus permits federal employees to sue the United
States and its agencies in "a civil action as provided in section
2000e-5." And the limitation in the waiver to civil actions as
provided in § 2000e-5 demands that we look at these provi-
sions in order to understand the scope of the sovereign immu-
nity waiver. See Rochon v. Gonzales, 438 F.3d 1211, 1216
(D.C. Cir. 2006) (looking to § 2000e-5(g)(1) to determine
whether Congress had waived sovereign immunity under Title
VII for retaliation claims).
The provisions of § 2000e-5 regulating civil actions include
language stating that suits enforcing Title VII rights may be
brought in "[e]ach United States district court and each United
States court of a place subject to the jurisdiction of the United
States." 42 U.S.C. § 2000e-5(f)(3). This language is one of the
conditions imposed in the waiver of sovereign immunity and
must be strictly construed in favor of the United States. See
Lane, 518 U.S. at 192. While § 2000e-5(f)(3) does not man-
date that suits be filed in federal courts, it likewise contains
no language authorizing Title VII suits to be filed in state
courts. The statute is "completely silent" on that point. Yellow
Freight, 494 U.S. at 825.
Sovereign immunity is "jurisdictional in nature," FDIC v.
Meyer, 510 U.S. 471, 475 (1994), and "the terms of [a sover-
eign’s] 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) (emphasis added). Sovereign immu-
6 BULLOCK v. NAPOLITANO
nity is not only a bar to liability but also a bar to the courts
in which suits against the United States can be filed, see id.
at 588-91, and to the remedies claimed, see Shaw, 478 U.S.
at 314-21. Any statutory waiver of sovereign immunity can
thus condition or limit the waiver. See Sherwood, 312 U.S. at
587.
In Sherwood, the Court held that the United States waived
sovereign immunity only for claims for certain dollar amounts
in the U.S. district courts and for other dollar amounts in the
Court of Claims. As the Court stated,
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.
312 U.S. at 586 (emphasis added) (internal citations omitted).
In Sherwood, there was a question of whether the United
States could be sued in the Court of Claims for specified
amounts in a contract dispute involving private parties. The
Court’s reasoning is especially apropos here: "Except as Con-
gress has consented there is no jurisdiction in the Court of
Claims more than in any other court to entertain suits against
the United States." Id. at 587-88.
In this case, Congress waived sovereign immunity for Title
VII suits brought by federal employees against the United
States, but it explicitly provided for jurisdiction only in fed-
eral courts. Nowhere in the language of the statutory authori-
zation is there a waiver as to suits that otherwise might be
brought in state courts. The Sherwood Court recognized this
type of limitation in no uncertain words:
Nor with due regard to [the text and legislative his-
tory of the waiver] can we say that the United States
has consented to the maintenance of suits against the
government in the district courts which could not be
BULLOCK v. NAPOLITANO 7
maintained in the Court of Claims. The section must
be interpreted in the light of its function in giving
consent of the Government to be sued, which con-
sent, since it is a relinquishment of a sovereign
immunity, must be strictly interpreted.
Sherwood, 312 U.S. at 590 (emphasis added).
Bullock argues that when Congress waived the United
States’ sovereign immunity for Title VII actions, it waived the
immunity from such actions in any court where they might be
brought, and because Yellow Freight construed Title VII to
impliedly authorize Title VII suits in state courts, the United
States therefore waived its sovereign immunity for Title VII
cases filed in state courts.
In Yellow Freight, which involved an employee’s Title VII
claim against a private corporation, the Supreme Court inter-
preted § 2000e-5(f) to grant concurrent jurisdiction to federal
and state courts, even though the language and legislative his-
tory of Title VII refer only to United States district courts and
other United States courts. See Yellow Freight, 494 U.S. at
823-26. The Court reasoned:
Under our system of dual sovereignty, we have con-
sistently held that state courts have inherent author-
ity, and are thus presumptively competent, to
adjudicate claims arising under the laws of the
United States. To give federal courts exclusive juris-
diction over a federal cause of action, Congress
must, in an exercise of its powers under the Suprem-
acy Clause, affirmatively divest state courts of their
presumptively concurrent jurisdiction.
***
Title VII contains no language that expressly con-
fines jurisdiction to federal courts or ousts state
8 BULLOCK v. NAPOLITANO
courts of their presumptive jurisdiction. The omis-
sion of any such provision is strong, and arguably
sufficient, evidence that Congress had no such
intent.
Id. at 823 (emphasis added) (internal quotation marks and
citations omitted). The Court thus relied on two propositions
to reach its conclusion. First, it recognized a presumption that
state courts are competent to adjudicate claims under federal
law. Second, it noted that Title VII, while authorizing suits in
United States courts and remaining "completely silent" about
suits in state courts, did not rebut this presumption by affirma-
tively divesting state courts of "their presumptively concur-
rent jurisdiction."
The fallacy in Bullock’s attempt to apply the logic of Yel-
low Freight to suits against the United States is that state
courts do not have presumptive jurisdiction to decide suits
against the United States. The United States has sovereign
immunity from such suits and any waiver of that immunity
must be "unequivocally expressed" in a statutory provision,
which the courts must construe in favor of the United States.
Lane, 518 U.S. at 192. Thus, while suits against private cor-
porations, which do not have sovereign immunity, can be jus-
tified by the presumption of concurrent state jurisdiction, a
suit against the United States can only rely on an unequivocal
waiver contained in a statutory provision. A statute’s "com-
plete silence" on the subject is insufficient. See Shaw, 478
U.S. at 319 ("[C]ongressional silence does not permit us to
read the provision as the requisite waiver of the Government’s
immunity"). Thus, even as Bullock urges us to "infer" a
waiver of sovereign immunity, the Supreme Court has
instructed that a waiver of sovereign immunity "will not be
implied."1 Lane, 518 U.S. at 192.
1
The dissent characterizes our holding as requiring Congress to "ex-
pressly waive exclusive federal court jurisdiction." But this confusing
characterization of our holding simply misses the point. Following well-
BULLOCK v. NAPOLITANO 9
Accordingly, we affirm the district court’s conclusion that
the North Carolina state court did not have subject-matter
jurisdiction over Bullock’s Title VII claim against the U.S.
Secretary of Homeland Security.
III
Because the North Carolina state court did not have
subject-matter jurisdiction over this case, the district court did
not acquire jurisdiction by reason of the case’s removal under
28 U.S.C. § 1442(a) from the state court to federal court. "The
jurisdiction of the federal court on removal is, in a limited
sense, a derivative jurisdiction. If the state court lacks juris-
diction 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." Lambert Run Coal Co.
v. Baltimore & Ohio R.R., 258 U.S. 377, 382 (1922); see also
Rodas v. Seidlin, 656 F.3d 610, 614-19 (7th Cir. 2011);
Palmer v. City Nat’l Bank of W. Va., 498 F.3d 236, 244-46
(4th Cir. 2007).
Accordingly, under this doctrine of derivative jurisdiction,
because the North Carolina state court did not have subject-
matter jurisdiction over Bullock’s Title VII claim against the
Secretary, neither did the district court after the Secretary
removed the action under 28 U.S.C. § 1442(a).2 We therefore
established principles, we are requiring Congress to expressly waive sov-
ereign immunity in any forum in which it chooses to allow the federal gov-
ernment to be sued. In disagreeing with our approach and relying on
Yellow Freight so heavily, the dissent overlooks the distinction between
the questions of whether Congress has made federal jurisdiction over a
claim exclusive and whether Congress has waived sovereign immunity.
The former is not at issue in this case.
2
Congress has specifically abrogated the doctrine of derivative jurisdic-
tion in cases removed under 28 U.S.C. § 1441, but it has not done so with
respect to actions removed under 28 U.S.C. § 1442. See 28 U.S.C.
§ 1441(f) (abrogating the derivative jurisdiction doctrine with respect to
cases "removed under this section"); see also Palmer, 498 F.3d at 246.
10 BULLOCK v. NAPOLITANO
affirm the district court’s order dismissing this case under
Federal Rule of Civil Procedure 12(b)(1).
AFFIRMED
GREGORY, Circuit Judge, dissenting:
Under unanimous Supreme Court precedent, a plaintiff may
file a suit alleging a violation of Title VII in either state or
federal court. The remaining limitation that exists where the
defendant is a federal employer—sovereign immunity—was
expressly waived in Title VII actions via § 2000-e16. Today’s
majority incorrectly extends the requirement that Congress
expressly waive sovereign immunity to also require Congress
to likewise expressly waive exclusive federal jurisdiction over
Title VII actions, a jurisdiction that is neither exclusive nor
presumed under our system of dual sovereignty and binding
Supreme Court precedent. For these reasons, I respectfully
dissent.
I.
The question of whether the United States or its agency
may be sued in state court under Title VII is a novel one in
this Circuit and elsewhere. It is undisputed that in Title VII
cases, the United States has waived sovereign immunity
where the federal government is the employer. See 42 U.S.C.
§ 2000e-16; Library of Congress v. Shaw, 478 U.S. 310, 319
(1986) (abrogated by statute on other grounds). The Govern-
ment, however, asks this Court to narrowly construe this
waiver as one that limits suits to U.S. district courts.
We first look to the express language of the statute to deter-
mine whether Congress has expressly prohibited a particular
term or condition of suit. The majority is correct that the rele-
vant statutory language prescribing the route to judicial relief
for aggrieved federal employees is 42 U.S.C. § 2000e-16.
However, contrary to the majority’s contention, ante at 6, the
BULLOCK v. NAPOLITANO 11
express language of the statute does not "explicitly provide[ ]
for jurisdiction only in federal courts."
Section 2000e-16 states, in pertinent part, that a federal
employee "may file a civil action as provided in section
2000e-5 of this title." With respect to jurisdiction — the dis-
puted "condition" in this case — § 2000e-5 then states "[e]ach
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)(3).
Significantly, the provision does not specify exclusive fed-
eral jurisdiction nor does it foreclose the possibility of pursu-
ing a Title VII remedy in state court. This is unlike a number
of consent statutes in which Congress unequivocally stated
that the jurisdiction of the federal courts is exclusive. The
Federal Torts Claims Act illustrates this distinction. See 28
U.S.C. § 1346(b) (specifying that U.S. district courts shall
have "exclusive" jurisdiction); see also, Taffin v. Levitt, 493
U.S. 455, 471 (1991) (Scalia, J., concurring) (listing statutes
that specifically recite that suit may be brought "only" in fed-
eral court). If Congress intends to limit jurisdiction to federal
courts, it knows how to do so.
But even more importantly, the Supreme Court interpreted
this very provision, § 2000e-5(f)(3), in Yellow Freight System,
Inc. v. Donnelly and unanimously determined it did not divest
state courts of their concurrent authority to adjudicate Title
VII claims. 494 U.S. 820, 823-26 (1990). While Yellow
Freight involved a Title VII action against a private employer,
and the majority understandably seeks to distinguish the deci-
sion on that ground, the jurisdictional provision it points to
today as allegedly providing exclusive federal court jurisdic-
tion to adjudicate claims against a federal employer is the
very same jurisdictional provision the unanimous Court con-
strued in Yellow Freight to conclude that Congress did not
limit jurisdiction to federal courts; that is, § 2000e-5(f)(3). See
12 BULLOCK v. NAPOLITANO
Yellow Freight, 494 U.S. at 823 (analyzing the text of Title
VII and directly quoting § 2000e-5(f)(3) as the pertinent statu-
tory language). It cannot be that the same provision has one
meaning for private sector employees and another for federal
employees where Congress expressly waived sovereign
immunity and provided that a federal employee may file a
civil action in the same manner as private sector employees.
See 42 U.S.C. § 2000e-16(c).
What’s more, nothing in the language or reasoning of Yel-
low Freight limits its holding to suits against private employ-
ers. To the contrary, the opinion paints with a broad brush.
The Court found that "[u]nlike a number of statutes in which
Congress unequivocally stated that the jurisdiction of the fed-
eral courts is exclusive, Title VII contains no language that
expressly confines jurisdiction to federal courts or ousts state
courts of their presumptive jurisdiction." Id. at 823 (emphasis
added). And despite the Court’s acknowledgement of the
"persuasive showing that most . . . involved in the enactment,
amendment, enforcement, and interpretation of Title VII
expected that such litigation would be processed exclusively
in federal courts," the Court still found "no reason to question
the presumption that state courts are just as able as federal
courts to adjudicate Title VII claims." Id. at 826.
While "we must construe waivers strictly in favor of the
sovereign . . . and not enlarge the waiver ‘beyond what the
language requires,’" Shaw 478 U.S. at 318, we have never
gone so far as to require Congress to expressly waive exclu-
sive federal court jurisdiction, a jurisdiction that is neither
exclusive nor presumed. See Taffin, 493 U.S. at 458 ("[W]e
have consistently held that state courts have inherent author-
ity, and are thus presumptively competent, to adjudicate
claims arising under the laws of the United States."); Yellow
Freight, 494 U.S. at 823 ("To give federal courts exclusive
jurisdiction over a federal cause of action, Congress must, in
an exercise of its powers under the Supremacy Clause, affir-
matively divest state courts of their presumptively concurrent
BULLOCK v. NAPOLITANO 13
jurisdiction.") (internal citations omitted). In every case the
majority cites as requiring express consent to a condition to
suit, a party was seeking to subject the federal government to
an unusual condition to suit or arguing that Congress had con-
sented to enlarged monetary penalties.* State court jurisdic-
tion, however, is not an enlarged monetary penalty nor is it an
unusual condition in our system of dual sovereignty.
In sum, a unanimous Supreme Court has unequivocally
stated § 2000e-(f)(3) does not give federal courts exclusive
jurisdiction nor does it foreclose the possibility of pursuing a
Title VII remedy in state court. Because a private sector liti-
gant may file a Title VII claim in state court and 42 U.S.C.
§ 2000e-16(c) provides that a federal employee may file a
civil action in the same manner as private sector employees,
so too can a public sector litigant file a Title VII action in
state court. Nothing in the text of Title VII itself, the Supreme
Court’s interpretation of that text in Yellow Freight, or our
time-honored system of dual sovereignty indicates otherwise.
II.
Under the doctrine of derivative jurisdiction, the federal
court properly assumed jurisdiction over the parties and the
claim, as the state court had jurisdiction over Bullock’s Title
VII action. Accordingly, I would reverse the district court’s
dismissal under Rule 12(b)(1) for lack of subject matter juris-
diction.
*In Shaw, the Supreme Court was faced with the question of whether
Congress had consented to the recovery of interest. 48 U.S. at 312. Simi-
larly, in Lane v. Pena, 518 U.S. 187 (1996), the disputed condition was
whether Congress waived its immunity from a monetary damages award.
And in United States v. Sherwood, the Court analyzed whether Congress
waived sovereign immunity only for claims for certain dollar amounts in
the U.S. district courts and for other dollar amounts in the Court of
Claims. 312 U.S. 584, 587 (1941).