UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LISA A. BIRON, : : Plaintiff, : v. : Civil Action No. 21-3307 (CKK) : LINDSEY GEORGE et al., : : Defendants. :

MEMORANDUM OPINION

Plaintiff filed a complaint pro se in the Superior Court of the District of Columbia,

alleging violations of the Freedom of Information Act,

, and the Privacy Act, 5

U.S.C. § 552a, and naming as defendants the U.S. Bureau of Prisons, then-BOP Director

Michael Carvajal, and BOP Chief of Information Management Lindsey George. See Compl.,

ECF No. 1-2. Defendants removed the case to this Court pursuant to

(a)(1). 1

Not. of Removal, ECF No. 1. Pending is Defendants’ Motion to 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 may be granted. For the following reasons, the motion based on

subject-matter jurisdiction will be granted.

I. BACKGROUND

Plaintiff, a federal prisoner at the Federal Correctional Institution in Waseca, Minnesota,

alleges the following. On May 5, 2021, the U.S. District Court for the District of New

Hampshire issued an order sealing a prior order issued on October 2, 2017, in one of plaintiff’s

1 Section 1442(a)(1) authorizes the United States, its agencies, and federal employees to remove to federal district court a civil action commenced against them “in a State court,”

which includes D.C. Superior Court,

(d)(6).

1 civil cases. On May 27, 2021, plaintiff notified BOP staff of the sealing order and “inquired as

to when the sealed Decision would be removed from” the Electronic Law Library (ELL), which

is “available agency-wide to all inmates as a legal research database.” Am. Compl. at 2, ECF

No. 7. Despite plaintiff’s “repeated attempts” to have the sealed order removed, defendants

“failed to remove [it] from the ELL until on or about November 23, 2021.”

Because of the

six-month delay, “other inmates at Plaintiff’s institution have learned private information about

her and have talked about it causing her to feel uncomfortable and embarrassed.”

.

Plaintiff seeks “damages in an amount not less than $1000.00” for “willful and intentional”

unlawful disclosures in violation of the Privacy Act. 2

.

II. LEGAL STANDARD

Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies

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

(1994);

see also Lujan v. Defenders of Wildlife,

(1992); Grand Lodge of Fraternal

Order of Police v. Ashcroft,

(D.D.C. 2001) (stating that a court has an

“affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”).

As such, a court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when

it lacks subject-matter jurisdiction. 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.

2 Although plaintiff mentions the FOIA, she has not alleged in either the original complaint or the amended complaint the elements of a FOIA claim, i.e., the improper withholding of agency records, and demanded the release of any such records. See Blazy v. Tenet,

(D.C. Cir. 1999) (discussing tension between FOIA’s public access purpose and the Privacy Act’s goal to “provide individuals with more control over the gathering, dissemination, and accuracy of agency information about themselves”) (citation and internal quotation marks omitted)).

2 for Underground Expansion v. Mineta,

(D.C. Cir. 2003) (citations omitted);

see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir.

2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to

grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled

complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all

possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole

Comm'n,

(D.C. Cir. 2005).

“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), [a] plaintiff[’s] 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.,

(D.D.C. 2007) (internal citations and quotation marks omitted). Moreover, a

court need not accept as true “a legal conclusion couched as a factual allegation” or an inference

“unsupported by the facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n,

(D.C. Cir. 2006) (internal citation and quotation marks omitted). And ultimately, it

remains the plaintiff’s burden to prove subject-matter jurisdiction by a preponderance of the

evidence. Am. Farm Bureau v. U.S. Env't Prot. Agency,

(D.D.C. 2000).

III. DISCUSSION

Defendant argues that dismissal is necessitated by the derivative jurisdiction doctrine.

See Mem., ECF No. 8 at 6-7. The Court agrees.

The doctrine of derivative jurisdiction traces its heritage to the near century’s old

pronouncement of the Supreme Court 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.,

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(1922). Traditionally stated, the doctrine provides that “if the state court lacks

jurisdiction over the subject matter or the parties, the federal court acquires none upon removal,

even though the federal court would have had jurisdiction if the suit had originated there.”

Arizona v. Manypenny,

, 242 n.17 (1981) (citations omitted); see also Merkulov v.

United States Park Police,

(D.D.C. 2014). Therefore, the operative

question under the derivative jurisdiction doctrine is whether the state court from which the

pending complaint was removed originally possessed jurisdiction over that civil action. See Day

v. Azar,

(D.D.C. 2018) (“[M]y jurisdiction over Ms. Day’s claims

depends on whether the Superior Court of the District of Columbia has jurisdiction to hear Title

VII claims against federal employers.”). If not, then the federal court cannot “derive” any

jurisdiction from that state court upon removal, and dismissal is required. See Merkulov,

(“[U]nder the doctrine of derivative jurisdiction, a Federal court must dismiss a

case if the State court lacked jurisdiction over the original claim.”).

“Admittedly, the justification for this derivative jurisdiction doctrine is ‘hardly obvious,’

and the doctrine has faced considerable scrutiny from courts and commentators alike[.]”

Robinson v. United States Dep't of Health & Hum. Res., No. 21-cv-1644 (CKK),

, at *3 (D.D.C. Oct. 14, 2021) (quoting Ricci v. Salzman,

(7th Cir.

2020) (other citations omitted)); see

(criticizing “the circuitous barrier the doctrine presents”

especially to pro se litigants “who may not be well-versed in the technicalities of civil procedure

or federal jurisdiction”). But while Congress has eliminated the doctrine altogether for cases

removed under the general federal removal statute, see

(f); Palmer v. City Nat.

Bank, of W. Virginia,

(4th Cir. 2007) (describing 1985 and 2002 amendments

to § 1441), it has made no such parallel amendment to § 1442. See Merkulov,

4 130 (explaining that Congress did not abrogate the derivative jurisdiction doctrine through an

amendment to § 1442). So, district courts in this jurisdiction have consistently found that the

derivative jurisdiction doctrine still applies to cases against federal agencies and officers sued, as

here, in their official capacity that are removed solely under § 1442(a). 3 Cf. Cobb v. United

States, No. 21-cv-2419 (CKK),

, at *2 (D.D.C. June 7, 2022), citing Charles

v. United States, No. 21-0864 (CKK),

(D.D.C. Feb. 24, 2022) (reaffirming

holding in Charles that “derivative jurisdiction is a ‘non-issue’ where

(d)(2)

independently confers removal jurisdiction upon a [tort] complaint removed to federal court

through a Westfall declaration”). And while the D.C. Circuit has not weighed in, other federal

circuit courts have upheld application of the derivative jurisdiction doctrine to cases removed

under § 1442. 4 The doctrine’s persistence is ultimately grounded in longstanding Supreme Court

precedent that generally retains its continued vitality absent any Congressional intervention to

the contrary. See State of Minnesota v. United States,

(1939) (“Where

jurisdiction has not been conferred by Congress, no officer of the United States has power to

give to any court jurisdiction of a suit against the United States.”).

3 See Falice v. O'Brien, No. 18-cv-2946 (CKK),

, at *3 (D.D.C. Oct. 20, 2020); Woods v. Hawk-Sawyer, No. 20-cv-1152 (TFH),

, at *2 (D.D.C. Oct. 20, 2020); James, 484 F. Supp. 3d at 4; Farmer v. Disability Program Manager, No. 19-cv-01731 (TNM),

, at *2 (D.D.C. May 21, 2020); Williams v. Perdue,

(D.D.C. 2019); Day,

; Johnson v. D.C. Metro Transit Auth.,

(D.D.C. 2017); Merkulov,

; Cofield v. United States,

(D.D.C. 2014); McKoy-Shields v. First Washington Realty, Inc., No. 11-cv-01419 (RLW),

, at *2 (D.D.C. Mar. 30, 2012). 4 See Reynolds v. Behrman Cap. IV L.P.,

, 1321–22 (11th Cir. 2021) (citing Third, Fourth, Fifth, and Seventh Circuit cases); Rodriguez v. United States, 788 Fed. App’x 535, 536 (9th Cir. 2019).

5 Because plaintiff’s complaint was removed from D.C. Superior Court solely under

(a), this Court must assess its jurisdiction by asking whether D.C. Superior Court

possessed subject-matter jurisdiction at the time of removal. For the reasons explained next, 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,

(1941) (citations omitted). This doctrine

applies to federal agencies and employees sued in their official capacities. See Kentucky v.

Graham,

, 165–66 (1985) (a suit against a government official in his official

capacity “generally represent[s] only another way of pleading an action against an entity of

which an officer is an agent” and “in all respects other than name [should] be treated as a suit

against the entity”) (internal quotation marks and citations omitted)). “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,

(D.C.

Cir. 2014) (citation omitted)). A waiver of sovereign immunity “must be unequivocally

expressed in statutory text[,]” Lane v. Pena,

(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,

(quoting Minnesota,

). “[S]tate courts do not have presumptive jurisdiction to decide suits against the United

States.” Bullock v. Napolitano,

(4th Cir. 2012).

Both the FOIA and the Privacy Act confer jurisdiction exclusively in the federal courts,

(a)(4)(B), 552a(g)(5), and authorize lawsuits against Executive-branch agencies

6 only,

(f)(1), 552a(a)(1); 552a(g)(1); see Armstrong v. U.S. Bureau of Prisons,

(D.D.C. 1997), aff'd sub nom. Armstrong v. Fed. Bureau of Prisons, No. 97-

5208,

(D.C. Cir. Jan. 30, 1998). Because D.C. Superior Court “never acquired

jurisdiction over either the subject matter [Privacy Act violations] or the [BOP] as a United

States agency,” Johnson v. D.C. Metro Transit Auth.,

(D.D.C. 2017),

this Court can acquire none from the removal under § 1442. Consequently, this case will be

dismissed without prejudice to preserve plaintiff’s ability to file an original action in an

appropriate federal court. See 5 U.S.C. § 552a(g)(5) (“An action to enforce any liability” under

the Privacy Act “may be brought in the district court of the United States in the district in which

the complainant resides, or has his principal place of business, or in which the agency records are

situated, or in the District of Columbia[.]”).

IV. CONCLUSION

For the foregoing reasons, the Court grants defendant’s motion to dismiss. A separate

Order accompanies this Memorandum Opinion.

__________/s/_________________ COLLEEN KOLLAR-KOTELLY United States District Judge Dated: February 3, 2023

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