UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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WILBUR JOHNSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-1721 (TSC)
)
)
D.C. METRO TRANSIT AUTHORITY )
et al., )
)
Defendants. )
)
MEMORANDUM OPINION
In a complaint filed on May 12, 2016, in the Superior Court of the District of
Columbia, plaintiff Wilbur Johnson sued the Washington Metropolitan Area Transit
Authority (“WMATA”) and the “the Smithsonian Archives Museum” for negligence.
He alleges that on May 10, 2013, while a passenger on a city bus, he was injured when
the bus “was hit from the rear” by a “Smithsonian Archives” van. (Compl., ECF No. 1-
1). He demands $325,000 in damages. (Compl. at 1).
On August 18, 2016, D.C. Superior Court dismissed the complaint against
WMATA as time-barred. (See Order, ECF No. 4-2). Shortly thereafter, on August 24,
2016, the Smithsonian Institution removed the case to this court pursuant to 28 U.S.C.
§ 1442 (a)(1). 1 (See Not. of Removal, ECF No. 1). The Smithsonian now moves to
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As applicable here, section 1442 of Title 28 of the United States Code authorizes the removal
of a civil action “commenced in a State court . . . that is against . . . [t]he United States or any
agency thereof [.]” The Smithsonian Institution is “an independent establishment of the United
States, within the ‘federal agency’ definition.” Expeditions Unlimited Aquatic Enterprises, Inc. v.
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dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. (Mot. to Dismiss, ECF No. 4). Upon consideration of Defendant’s motion and
Reply (ECF No. 8), and Plaintiff’s opposition (ECF Nos. 6, 7, 9), the court agrees that
it lacks subject matter jurisdiction. Accordingly, this case will be dismissed for the
reasons explained more fully below.
I. LEGAL STANDARD
“Federal district courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal
citations omitted). “Subject-matter jurisdiction can never be waived or forfeited”
because it “goes to the foundation of the court’s power to resolve a case.” Gonzalez v.
Thaler, –– U.S. ––, 132 S. Ct. 641, 648 (2012); Doe ex rel. Fein v. District of
Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996). Consequently, before proceeding to the
merits of a claim, a court must satisfy itself that it has subject matter jurisdiction over
the claim. See Brown v. Jewell, 134 F. Supp. 3d 170, 176 (D.D.C. 2015) (courts “‘have
an independent obligation to determine whether subject-matter jurisdiction exists, even
in the absence of a challenge from any party’”) (quoting Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006)).
Smithsonian Inst., 566 F.2d 289, 296 (D.C. Cir. 1977) (citations and internal quotation marks
omitted).
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II. ANALYSIS
Defendant offers two jurisdictional grounds for dismissal: (1) the doctrine of
derivative jurisdiction (Def.’s Mem. at 5-6) and (2) Plaintiff’s failure to exhaust
administrative remedies under the Federal Tort Claims Act (“FTCA”) (Id. at 6-7). Each
suffices to deprive this court of subject matter jurisdiction.
A. Derivative Jurisdiction
Long ago, the Supreme Court observed that “[t]he jurisdiction of the federal
court on removal is, in a limited sense, a derivative jurisdiction.” Lambert Run Coal
Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922). Congress has since eliminated
derivative jurisdiction as a barrier to actions removed under 28 U.S.C. § 1441, see id.
§ 1441(f), but § 1442, under which this case was removed, has no parallel provision.
“Accordingly, Federal courts in this District, and throughout the country, have
determined that the doctrine of derivative jurisdiction still applies to claims removed
under Section 1442.” Merkulov v. United States Park Police, 75 F. Supp. 3d 126, 130
(D.D.C. 2014) (citing cases); see Lopez v. Sentrillon Corp., 749 F.3d 347, 351 (5th Cir.
2014) (joining the seventh and fourth circuit courts of appeals in concluding “that, ‘for
whatever reasons [,] Congress intended to keep the [derivative jurisdiction] doctrine in
place’ for removals other than those under § 1441”) (quoting Rodas v. Seidlin, 656 F.3d
610, 619 (7th Cir. 2011) (alterations in original)).
In a removed case such as this, a federal court’s jurisdiction must “ ‘mirror the
jurisdiction that the state court had over the action prior to removal.’ ” Merkulov, 75 F.
Supp. 3d at 129 (quoting Palmer v. City Nat. Bank of West Virginia, 498 F.3d 236, 239
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(4th Cir. 2007)). Consequently, “[i]f a State court lacks subject matter jurisdiction over
a suit, the Federal court likewise lacks jurisdiction over the suit upon removal, even if
the Federal court would have maintained jurisdiction ‘in a like suit originally brought
there. . . .’” Id. (quoting Lambert Run Coal Co., 258 U.S. at 382). A threshold
question for determining derivative jurisdiction “‘is whether, prior to removal, the
Superior Court . . . had jurisdiction of the subject matter or of the parties.’” Cofield v.
United States, 64 F. Supp. 3d 206, 214 (D.D.C. 2014) (quoting McKoy-Shields v. First
Washington Realty, Inc., No. 11-cv-01419, 2012 WL 1076195, at *2 (D.D.C. Mar. 30,
2012)).
Defendant argues correctly that Plaintiff’s negligence action against the
Smithsonian “is subject to the FTCA, which grants ‘exclusive jurisdiction’ to the
United States district courts over civil actions brought against the United States for
monetary damages.” (Def.’s Mem. at 6, ECF No. 4-1); see Lopez, 749 F.3d at 351
(“The United States has waived its sovereign immunity to tort liability only under the
FTCA[.]”) (citing 28 U.S.C. § 1346(b)(1)). Section 1346(b)(1) authorizes a lawsuit
against the United States for money damages arising from “personal injury . . . caused
by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment.” Because Congress has not
consented to the United States being sued in state court for negligence, the Superior
Court never acquired jurisdiction over either the subject matter or the Smithsonian as a
United States agency. See Merkulov, 75 F. Supp. 3d at 130-31. As a result, this court
“acquires none.” Lambert Run Coal Co., 258 U.S. at 382.
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B. Exhaustion of Administrative Remedies
Even if Plaintiff had initially filed the case here, the court still would be without
jurisdiction. As indicated above, the FTCA is the exclusive basis for Plaintiff’s
negligence claim against the Smithsonian. Before filing a lawsuit under the FTCA, a
plaintiff must exhaust his administrative remedies by presenting the claim “first . . . to
the appropriate Federal agency” and obtaining a final written denial. 28 U.S.C.
§ 2675(a). If the agency fails to issue a final decision within six months after the claim
is submitted, such inaction may “be deemed a final denial of the claim[.]” Id. The
FTCA’s presentment requirement is “jurisdictional.” Simpkins v. District of Columbia
Gov’t, 108 F. 3d 366, 371 (D.C. Cir. 2007); see Atherton v. United States, 193 F. Supp.
3d 2, 4 (D.D.C. 2016) (noting that “since ‘compliance with § 2675(a)’s presentment
requirement is a jurisdictional precondition to filing an FTCA suit in federal district
court,’ subject-matter jurisdiction would not exist in an FTCA suit filed prematurely”)
(quoting Mader v. United States, 654 F.3d 794, 805 (8th Cir. 2011)).
The Smithsonian has “no record” that Plaintiff “filed a claim for injury or
damages under the FTCA[.]” (Decl. of Jessica Lauritzen, ECF No. 4-4). The
attachments to the Complaint include a completed claim form containing a printed P.O.
Box address for claims directed to the Smithsonian Institution. But the form is not
dated and there is no indication that it was properly addressed and delivered. (See ECF
No. 1-1, p. 3). Most importantly, nowhere in Plaintiff’s opposition has he addressed,
let alone refuted, Defendant’s argument that his claim is unexhausted. Therefore, the
court finds that it lacks “subject matter jurisdiction, or if not jurisdiction, the functional
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equivalent of it” to entertain the FTCA claim. Simpkins, 108 F. 3d at 371. And “in this
posture, the court could no more rule in favor of the government than against it,” id., on
the non-jurisdictional ground that the claim is barred by the FTCA’s statute of
limitations (Def.’s Mem. at 7). See United States v. Kwai Fun Wong, 135 S. Ct. 1625,
1638 (2015) (holding “that the FTCA’s time bars are nonjurisdictional and subject to
equitable tolling”).
III. CONCLUSION
For the foregoing reasons, the Court grants Defendant’s motion to dismiss for
want of subject matter jurisdiction. A separate order accompanies this memorandum
opinion.
Date: March 9, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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