UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEVIN WILLIAMS,

Plaintiff,

v. Civil Action No. 23-1859 (RDM) PRETRIAL SERVICES AGENCY FOR THE DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff Kevin Williams (“Plaintiff”), proceeding pro se, initiated this lawsuit against the

Pretrial Services Agency for the District of Columbia (“PSA”) by filing suit in Superior Court of

the District of Columbia on May 5, 2023. Dkt. 1-1 at 2. Plaintiff’s complaint is sparse by any

measure. He merely asserts: “This complaint is in regards to some fake charges that ha[ve] been

placed on my criminal record. Please see attachment.” Dkt. 5 at 8. In the attachment, he then

asserts:

I’ve informed to my lawyer that these charges are fake, and he advised me to bring it up in court. I currently have a case pending, and the Judge has the ability to show prejudice towards me, because of these fake convictions. I’ve talked to my case manager as well of these matters, and to her knowledge it was an error. I was not provided any new paperwork of such matter, and she denied my request for me to obtain a new copy. I have no new documents to prove in court. Not only is this illegal, but this is a identity theft issue as well. I believe I should be compensated, and such matter should be investigated.

Id. at 10. Plaintiff seeks compensatory relief and asks that “this matter be investigated.” Id. at 8.

I.

On June 26, 2023, PSA removed the action to this Court pursuant to

(a)(1), which permits removal of actions brought against “any agency” of the United States.1

(a)(1); see Dkt. 1 at 1. At the time of removal, PSA had not yet been

served.2 See Dkt. 5 at 2. Then, on October 6, 2023, PSA moved to dismiss Plaintiff’s suit for

lack of subject-matter jurisdiction, insufficient service of process, and failure to state a claim.

Dkt. 8 at 1. In response, the Court did two things: First, it issued a Fox/Neal Order on October

10, 2023, cautioning Plaintiff that, if he failed to respond to PSA’s motion, the Court might (1)

treat the motion as conceded, (2) decide the motion based solely on PSA’s filings, or (3) dismiss

the case for failure to prosecute. Dkt. 10. Second, the Court directed Plaintiff to effect service

“in the manner prescribed by Rule 4 . . . on or before November 6, 2023” and to file proof of

service by that date or to show good cause for an extension of time to effect service. Id.; Min.

Order (Oct. 10, 2023).

That same day, Plaintiff filed an opposition brief—denominated as a motion not to

dismiss—explaining that his case alleges “defamation” and “other legal errors,” and again

requesting that the matter be investigated or that he receive compensation “due to the court[’]s

mistake.” Dkt. 11 at 1. Plaintiff’s opposition, however, fails to offer any substantive response to

the arguments raised in PSA’s motion to dismiss.

1 PSA is a federal agency. See PSA Home Page, https://perma.cc/W8EB-72PP. Specifically, PSA “is a federal independent entity within the Court Services and Offender Supervision Agency (CSOSA).” PSA About Page, https://perma.cc/VL6X-8WHU. 2 The Court notes that PSA’s removal was timely because “the 30-day period for removal under

(b) does not run until a defendant is brought under the court’s authority by formal service of process (or waiver of such service).” Mohammed v. Cooper,

, at *2 (D.D.C. July 14, 2023) (quoting UMC Dev., LLC v. D.C.,

(D.D.C. 2013). “This is true even if the defendant knows about the suit earlier and has obtained a copy of the complaint.”

(quoting UMC Dev., LLC, 982 F. Supp. at 17).

2 II.

A pro se litigant’s pleadings are held to less stringent standards than the standards applied

to formal pleadings drafted with the assistance of counsel. See Haines v. Kerner,

(1972). Nonetheless, even pro se litigants must comply with the Federal Rules of Civil

Procedure. See Jarrell v. Tisch,

(D.D.C. 1987). As relevant here, Rule 12

entitles an opposing party to dismissal if the court lacks subject-matter jurisdiction or if the

complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(1),

(5)–(6). Where, as here, a defendant files a motion to dismiss for lack of jurisdiction, pursuant to

Rule 12(b)(1), and also moves to dismiss for failure to state a claim, pursuant to Rule 12(b)(6),

“the court must first examine the Rule 12(b)(1) challenges” because a dismissal for lack of

subject matter jurisdiction renders “the [other] accompanying defenses and objections [ ]

moot[.]” Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (citations

and internal quotation marks omitted). The Court, accordingly, starts—and ends—with PSA’s

motion to dismiss for lack of jurisdiction.

At the motion to dismiss stage, a challenge to the Court’s jurisdiction may take one of

two forms. First, a Rule 12(b)(1) motion may raise a “facial” challenge to the Court’s

jurisdiction. A facial challenge asks whether the complaint alleges facts sufficient to establish

the court’s jurisdiction. See Lujan v. Defs. of Wildlife,

(1992); see also I.T.

Consultants v. Pakistan,

(D.C. Cir. 2003). In this posture, the Court must

accept the factual allegations of the complaint as true. Erby v. United States,

(D.D.C. 2006). Alternatively, a Rule 12(b)(1) motion may raise a “factual” challenge

to the Court’s jurisdiction. When a motion to dismiss is framed in this manner, the Court “may

not deny the motion . . . merely by assuming the truth of the facts alleged by the plaintiff and

3 disputed by the defendant” but “must go beyond the pleadings and resolve any disputed issues of

fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix

Consulting Inc. v. Republic of Angola,

(D.C. Cir. 2000).

Here, PSA raises a facial challenge to the Court’s jurisdiction, and, thus, the Court must

base its decision on the allegations contained in the complaint, as supplemented by (or construed

in light of) Plaintiff’s pro se filings. Plaintiff, moreover, bears the burden of alleging facts

sufficient to establish that the Court has jurisdiction. Didban v. Pompeo,

,

173 (D.D.C. 2020); see Lujan,

. The Court must, however, “assume the truth of

all material factual allegations in the complaint.” Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011).

A.

As explained in its motion to dismiss, PSA contends that the Court lacks subject-matter

jurisdiction under the doctrine of “derivative jurisdiction.” Dkt. 8 at 4. When a case is removed

from state or local court to federal court, the jurisdiction of the federal court on removal is

“derivative” of the state court’s jurisdiction. Lambert Run Coal Co. v. Baltimore & O.R. Co.,

(1922). This means that where “the state court [i]s without jurisdiction” over

a case initially, the federal court does not “acquire jurisdiction” through the removal.

Put

differently, when confronted with a removed case over which there was no jurisdiction in state or

local court at the outset, a federal district court must dismiss the case, “even if Plaintiff could

have filed his complaint in federal [district] court in the first instance.” Cofield v. United States,

(D.D.C. 2014). This rule does not apply across the board: Congress has

“eliminated derivative jurisdiction as a barrier to actions removed under 28 U.S.C. § 1441”—the

general federal-question removal statute. Johnson v. D.C. Metro Transit Auth.,

(D.D.C. 2017);

(f). But, “for whatever reasons,” Congress has

maintained the doctrine of derivative jurisdiction for cases removed on other bases. Lopez v.

Sentrillon Corp.,

(5th Cir. 2014) (alteration omitted) (quoting Rodas v.

Seidlin,

(7th Cir. 2011)). And because PSA removed this case pursuant to

(a)(1), see Dkt. 1 at 1, the doctrine of derivative jurisdiction applies. Accordingly,

this Court has jurisdiction over the case only if the Superior Court had jurisdiction in the first

place.

This, then, poses the first difficulty that the Court faces—the nature of Plaintiff’s claim

for relief (and thus the basis for the Court’s jurisdiction) is difficult to discern. That difficulty,

standing alone, might provide sufficient basis to dismiss the complaint. Because Plaintiff bears

the burden of alleging facts sufficient to establish jurisdiction, and because neither the complaint

nor Plaintiff’s opposition brief identifies a cause of action, the Court might simply conclude that

Plaintiff has failed to meet his burden. That is, the Court cannot determine whether it has

subject-matter jurisdiction without knowing what law Plaintiff seeks to invoke in support of his

claim. That uncertainty is particularly problematic in the present context, moreover, since

Plaintiff brings suit—and seeks compensatory relief—from a federal agency, and, thus, the Court

lacks jurisdiction in the absence of an applicable waiver of sovereign immunity.

PSA identifies two federal statutes that might plausibly support Plaintiff’s claim: He

might intend to bring suit under either the Federal Tort Claims Act (“FTCA”),

,

or the Privacy Act, 5 U.S.C. § 552a.3 See Dkt. 8 at 4; Dkt. 1-1 at 4. But although these statutes

3 PSA also suggests that Plaintiff’s claim might seek to assert a “general constitutional claim.” Dkt. 8 at 4. But, even construed in this liberal manner, the doctrine of derivative jurisdiction would still pose an insurmountable hurdle, since Plaintiff has not identified a waiver of federal sovereign immunity that would have permitted him to bring a constitutional claim against a

5 include limited waivers of sovereign immunity, they pose a separate problem for Plaintiff, and

PSA argues that this separate problem—the doctrine of derivative jurisdiction—requires

dismissal.

The FTCA provides that “[t]he United States shall be liable, respecting the provisions of

this title relating to tort claims, in the same manner and to the same extent as a private individual

under like circumstances[.]”

. The Privacy Act “regulates the collection,

maintenance, use, and dissemination of information about individuals by federal agencies.”

Wilson v. Libby,

(D.C. Cir. 2008) (internal quotation marks and citations

omitted). The Privacy Act authorizes money damages for “intentional or willful” misconduct by

the agency as well as injunctive relief in two circumstances: wrongful withholding of documents

and wrongful refusal to amend a record. 5 U.S.C. § 552a(g)(2)–(4). Here, Plaintiff alleges that

PSA committed errors regarding the content of his criminal record and that he was denied a copy

when he requested one. Dkt. 1-1 at 4. As PSA suggests, these allegations might plausibly fall

within the ambit of the FTCA or the Privacy Act. But—critically—both the FTCA and the

Privacy Act confer “exclusive jurisdiction” on the federal district courts over such actions.

(b); 5 U.S.C. § 552a(g)(5); see Cofield,

. As a result, the

federal agency before a D.C. court. The Administrative Procedure Act’s waiver of sovereign immunity, for example, permits suits against agencies for nonmonetary relief only in federal district court. See

. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer,

(1994). And, to the extent Plaintiff seeks to assert a claim for damages under Bivens v. Six Unknown Fed. Narcotics Agents,

(1971), his claim would fail “as a matter of law.” Doe v. U.S. Customs & Border Protection,

, at *6 (D.C. Cir. Mar. 16, 2021). Bivens is unavailable in cases brought against the United States or “agencies of the Federal Government,” FDIC,

, including PSA.

6 Superior Court lacked jurisdiction over Plaintiff’s claims, and, accordingly, this Court lacks

derivative jurisdiction.

Thus, even construing Plaintiff’s complaint liberally, the Court lacks subject-matter

jurisdiction.

B.

Given this conclusion, the Court need not reach PSA’s other arguments. The Court

notes, however, that Plaintiff’s complaint suffers from numerous additional flaws, at least some

of which also go to the Court’s jurisdiction. Most notably, to the extent Plaintiff intends to bring

an action under the FTCA, he has not alleged that he has exhausted administrative remedies, and

exhaustion is a jurisdictional prerequisite to bringing suit under the FTCA. See Rasul v. Myers,

, 528 n.1 (D.C. Cir 2009) (“Since plaintiffs failed to exhaust their administrative

remedies as required by the FTCA, the district court lacked jurisdiction.” (internal citation

omitted)). Administrative exhaustion is also required under the Privacy Act, 5 U.S.C.

§ 552a(d)(1)–(3) & (g)(1); Haase v. Sessions,

(D.C. Cir. 1990), at least raising

the question whether that requirement is also jurisdictional, cf. Lopez v. Nat’l Archives &

Records Admin.,

(D.D.C. 2018) (“[F]ailure to exhaust administrative

remedies under the Privacy Act is a jurisdictional deficiency because exhaustion is required by

statute.”). For present purposes, however, the Court need not decide whether the Privacy Act

exhaustion requirement is jurisdictional because the Court, in any event, lacks jurisdiction to

entertain a Privacy Act claim against a federal agency that was commenced in state or local

court.

7 CONCLUSION

For the foregoing reasons, the Court will dismiss this case without prejudice for lack of

subject-matter jurisdiction.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 6, 2024

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