UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEE DEIDRE FARMER,

Plaintiff,

v. Case No. 19-cv-01731 (TNM)

DISABILITY PROGRAM MANAGER, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Dee Deidre Farmer filed an action pro se in the Superior Court of the District of

Columbia against two employees of the U.S. Bureau of Prisons (“BOP”). They removed the

case here under

, 1446. Pending is Defendants’ Motion to Dismiss for, among

other reasons, lack of subject matter and personal jurisdiction. Defs.’ Mot. to Dismiss, ECF No.

8. For the following reasons, the motion will be granted.

I.

Farmer is incarcerated at the Federal Medical Center in Butner, North Carolina (“FMC

Butner”). See Civ. Compl. for Decl. J. at 3, ECF No. 1-1. She alleges that Acting Warden Eric

Earwin of FMC Butner and an unnamed Disability Program Manager for the BOP have

discriminated against her by refusing to provide accommodations for her disabilities.

Farmer

claims that they have violated unspecified rights under the Constitution and the laws of the

United States and the District of Columbia. See Compl. ¶¶ 60–61. So Farmer seeks declaratory

and injunctive relief, as well as $200,000 in damages. Compl. ¶ VI; see Superior Court Info.

1 Sheet at 16, ECF No. 1-1. 1

Defendants understand the discrimination claim to be brought under the Rehabilitation

Act of 1973 and Title II of the Americans with Disabilities Act (“ADA”), and the claim for

money damages to be brought under the Federal Tort Claims Act (“FTCA”). See Removal Not.

¶¶ 3, 5–6; Defs.’ Reply 3, ECF No. 14. The Court also construes Farmer’s Complaint to raise

Bivens claims for money damages against Earwin and the Disability Program Manager.

II.

Federal courts are courts of limited jurisdiction, and it is “presumed that a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co.,

(1994).

Thus, in “every case, the jurisdictional requirements of Article III must be present before a court

may proceed to the merits.” Moms Against Mercury v. FDA,

(D.C. Cir.

2007); see Fed. R. Civ. P. 12(h)(3) (requiring that if a court finds “at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action”). Besides subject-matter

jurisdiction, the plaintiff “bears the burden of establishing personal jurisdiction over each

defendant.” See Azamar v. Stern,

, 170–71 (D.D.C. 2009). To do this, the

plaintiff “must allege specific facts upon which personal jurisdiction can be based; [she] cannot

rely on conclusory allegations.”

.

A pro se litigant’s allegations are held to a less stringent standard than pleadings drafted

by lawyers. See Harris v. Bowser,

, 195 (D.D.C. 2019). But

unrepresented litigants are “not freed from the requirement to plead an adequate jurisdictional

basis for their claims.” Gomez v. Aragon,

(D.D.C. 2010).

1 All page citations refer to the pagination generated by the Court’s CM/ECF system.

2 III.

Defendants argue that the derivative jurisdiction doctrine bars this case. Defs.’ Mot. at

5–9; Defs.’ Reply at 4. Alternatively, they suggest that Farmer’s Complaint should be dismissed

for lack of personal jurisdiction and improper venue. Defs.’ Mot. at 9–12. The Court agrees.

A.

The D.C. Superior Court never had jurisdiction over most of Farmer’s claims. Under

(a), federal defendants sued in “a State court” may remove the action to a federal

district court. 2 When a federal defendant removes a case under § 1442, the federal court may

hear the plaintiff’s claims only if the state court had jurisdiction to hear those claims. Day v.

Azar,

(D.D.C. 2018) (citing Lambert Run Coal Co. v. Baltimore,

(1922)). This is called the “derivative jurisdiction doctrine,” and it applies even if

the Court would have had original jurisdiction had the case been filed here first.

“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,

(1941) (citations omitted). This immunity

extends to federal agencies and employees. A waiver of sovereign immunity “must be

unequivocally expressed in statutory text.” Lane v. Pena,

(1996).

Each of Famer’s potential claims faces insurmountable obstacles. Consider first the

Rehabilitation Act. The United States has not consented to be sued in the Superior Court for

violating this Act. See Williams v. Perdue,

(D.D.C. 2019) (explaining

that the Rehabilitation Act adopts the jurisdictional provisions of Title VII of the Civil Rights

2 For removal, the “term ‘State court’ includes the Superior Court of the District of Columbia.”

§ 1442(d)(6). 3 Act of 1964, which confers original jurisdiction in “[e]ach United States district court,” not D.C.

Superior Court). Nor can the United States be sued for violating the ADA, since the ADA “does

not apply to the federal government.” Beaird v. Gonzales,

, 83 n.2 (D.D.C.

2007); see

(excluding the federal government from the definition of “public

entity” covered by the Act).

More, if Farmer intends to claim money damages under the FTCA, the United States has

rejected the Superior Court’s jurisdiction over this type of claim. Consistent with the Westfall

Act,

(d), the Chief of the U.S. Attorney’s Office Civil Division certified that at

all times relevant to this action, Earwin was acting within the scope of his office as a federal

employee. See Removal Not., Ex. B, ECF No. 1-2. Farmer has not contested this certification. 3

Thus the “federal employee is dismissed from the case and the United States is substituted as the

defendant in place of the employee.” Wuterich v. Murtha,

(D.C. Cir. 2009)

(citing

(d)(1)). The suit against the federal employee is governed by the FTCA

and is “subject to all of the FTCA’s exceptions for actions in which the Government has not

waived sovereign immunity.”

The FTCA provides a limited waiver of the federal government’s immunity from suit for

monetary damages, but it does not confer jurisdiction in state courts to hear such claims. See

(b) (conferring to federal district courts “exclusive jurisdiction” over FTCA

claims). Since the Superior Court lacked jurisdiction over this action, this Court now does too.

3 “The certification constitutes prima facie evidence that the employee was acting within the scope of his employment. To rebut the certification and obtain discovery, a plaintiff must allege sufficient facts that, taken as true, would establish that the defendant’s actions exceeded the scope of his employment.” Wuterich,

(cleaned up). Farmer alleges no such facts.

4 Accord Merkulov v. U.S. Park Police,

, 130–31 (D.D.C. 2014) (examining

cases).

Finally, Farmer’s Complaint generally alleges that Defendants “violated her rights under

the Constitution.” Compl. ¶¶ 60–61. So besides suing Earwin and the Disability Program

Manager in their official capacities, she arguably asserts Bivens claims for money damages

against Defendants in their individual capacities. Compl. ¶ 4–5; see Simpkins v. D.C. Gov’t,

(D.C. Cir. 1997) (noting that Bivens suits are “actions against federal officers in

their individual capacity, not their official capacity”). Farmer insists that her constitutional

claims should not be dismissed on derivate jurisdiction grounds because the Superior Court had

jurisdiction over these claims and Defendants should not have removed these claims under

§ 1442. 4 Pl.’s Opp’n at 4–5. Defendants do not meaningfully address these arguments. See

Defs.’ Reply at 4.

Indeed, it appears that the Superior Court may have permissibly exercised jurisdiction

over Farmer’s Bivens claim. See Gatlin v. Piscitelli, No. 18-cv-2716,

, at *2

(D.D.C. Jan. 31, 2020) (“The doctrine of derivative jurisdiction is inapplicable to Gatlin’s Eighth

Amendment Bivens-claim brought against the individual defendants because states—or here, the

District—possesses concurrent jurisdiction to adjudicate constitutional claims.” (citing Tafflin v.

Levitt,

(1990)); see also James L. Buchwalter, Cause of Action Under

“Bivens” Doctrine Against Federal Official for Violation of Constitutional Rights, 56 Causes of

4 If Defendants removed Farmer’s constitutional claims under § 1441 rather than § 1442(a)(1), the derivative jurisdiction doctrine would not apply. See Williams,

(“When a case is removed under Section 1441, a federal court may hear a claim over which it would have had original jurisdiction, even if the state court lacked jurisdiction over the claim.

(f). By contrast, removals under Section 1442 are subject to the derivative jurisdiction requirements.”).

5 Action 2d 593 § 24 (2013) (“A Bivens action is almost always brought in federal district court,

but a state court of general jurisdiction may certainly hear such a claim as well.”).

But the Court need not settle that question since Farmer’s Bivens claims must be

dismissed for lack of personal jurisdiction for the reasons that follow. See Jankovic v. Int’l

Crisis Grp.,

(D.C. Cir. 2007) (“A complaint may be dismissed for lack of

personal jurisdiction without settling whether subject-matter jurisdiction exists.”).

B.

Farmer bears the burden of establishing personal jurisdiction over Warden Earwin and

the unnamed Disability Program Manager. Azamar, 662 F. Supp. 2d at 170–71. Her brief insists

that this Court has personal jurisdiction over Defendants because “Defendants work or reside in

the District of Columbia, or have sufficient contacts in the District of Columbia.” Pl.’s Opp’n at

5. But, as Defendants explain, her Complaint does not reflect this.

Personal jurisdiction “must be determined by reference to District of Columbia

law.” United States v. Ferrara,

(D.C. Cir. 1995). The District’s law allows

D.C. courts to “exercise personal jurisdiction over a person domiciled in, organized under the

laws of, or maintaining his or its principal place of business in, the District of Columbia as to any

claim for relief.”

. Alternatively, under the District’s long-arm statute, a

court may exercise jurisdiction over a non-resident defendant who, as relevant here, (1)

“transact[s] any business in the District of Columbia”; (2) “caus[es] tortious injury in the District

of Columbia by an act or omission in the District of Columbia”; (3) or “caus[es] tortious injury

in the District of Columbia by an act or omission outside the District of Columbia if he regularly

does or solicits business, [or] engages in any other persistent course of conduct . . . in the District

6 of Columbia[.]” 5 See

(a)(1), (3), (4).

Farmer’s Complaint does not allege that either Earwin or the Disability Program Manager

are domiciled in the District. Indeed, it is highly unlikely that Earwin is domiciled in the District

since he is the acting warden of FMC Butner in North Carolina. See Compl. ¶ 5.

The Complaint also includes no allegations about the Disability Program Manager’s

residence or principal place of business. See Compl. ¶ 4. The Complaint’s caption lists the BOP

headquarters in Washington, D.C., as the Manager’s mailing address, presumably because the

Manger is a BOP employee.

. But that is not enough. See Richard v. Bell Atl. Corp.,

, 73–74 (D.D.C. 1996) (holding that a D.C. mailing address alone cannot establish

general personal jurisdiction without factual allegations about residence or personal place of

business). The D.C. Circuit has instructed judges in this District to “examine challenges to

personal jurisdiction . . . carefully to guard against the danger that a plaintiff might manufacture

venue in the District of Columbia” since the District is the seat of federal government. Cameron

v. Thornburgh,

(D.C. Cir. 1993); see also Simpson v. Fed. Bureau of Prisons,

(D.D.C. 2007) (finding no personal jurisdiction over BOP employees

based solely on the location of the BOP headquarters). So to establish personal jurisdiction

under

, it is Farmer’s burden to allege “specific facts” that the Manager

resided or worked in the District. See Azamar,

(emphasis added). This she

fails to do.

The Complaint never alleges that the Manager resides in the District or that he or she

works at the BOP headquarters. Nor does Farmer include any facts from which the Court can

5 Farmer cites

(a)(7)(E) as the basis for the Court’s personal jurisdiction here. But this provision applies only to “a claim for relief arising from the person’s marital or parent and child relationship in the District of Columbia.” See

(a)(7)(E). 7 infer that the Manger works at the BOP headquarters, such as by suggesting that the Manager’s

alleged “acts or omissions” occurred in the District. Without these factual allegations, the Court

cannot exercise personal jurisdiction under

.

Neither has Farmer established personal jurisdiction under the District’s long-arm statute.

The relevant provisions in the District’s long-arm statute require either that the injury be caused

“by an act or omission in the District of Columbia” or “by an act or omission outside the District

of Columbia if [a defendant] regularly does or solicits business,” “transact[s] any business,” or

“engages in any other persistent course of conduct . . . in the District of Columbia[.]” See

(a)(1), (3), (4) (emphasis added).

Farmer’s Complaint makes no allegations that Defendants have any personal connection

with the District of Columbia, outside their federal employment with the BOP. In fact, her

Complaint only makes three references to the District of Columbia: (1) Farmer alleges that

Defendants “violated her rights under the Constitution and laws of the District of Columbia,” see

Compl. ¶¶ 60–61;

; (2) she asserts that venue is proper and subject-matter jurisdiction is

present “under the laws of the District of Columbia,”

¶¶ 1–2; and (3) she notes that she has

had civil cases pending in Washington, D.C.,

. This is not enough.

Since Earwin is the acting warden at FMC Butner in North Carolina, the Court doubts—

and Farmer does not allege—that he regularly transacts business in the District. As for the

Disability Programs Manager, at most Farmer’s case caption suggests that this Court has

jurisdiction over him or her because the Manager is a BOP employee. See Compl. at 1. But

Farmer’s Complaint does not allege that the Manager worked at the BOP headquarters or had

any persistent contact with the District. “The mere fact that [Defendants] are federal government

employees, affiliated with agencies headquartered or maintaining offices in this district, does not

8 render them subject to suit in their individual capacities in the District of Columbia.” Akers v.

Watts,

(D.D.C. 2010); see also Skinner v. United States, No. 05-cv-2237,

, at *2 (D.D.C. Mar. 6, 2007) (noting that although “defendants are employees

of BOP, the headquarters office of which is in the District of Columbia,” this fact “does not

render them subject to suit in their individual capacities in the District of Columbia”).

Since Farmer’s Complaint lacks any factual allegations tying Defendants to the District

of Columbia, this Court will dismiss Farmer’s Bivens claims for lack of personal jurisdiction.

IV.

For these reasons, Defendants’ Motion to Dismiss under Rule 12(b)(1) and 12(b)(2) is

granted. A separate Order will issue.

2020.05.21 13:38:46 -04'00' Dated: May 21, 2020 TREVOR N. McFADDEN United States District Judge

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