UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY SHARP,

Plaintiff.

v. Nos. 24-cv-01345 (DLF) 24-cv-01144 (DLF) DEPARTMENT OF VETERAN AFFAIRS, BOARD OF APPEALS,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is the Department of Veteran Affairs, Board of Appeals’ (“Board”)

Motion to Dismiss this consolidated action under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Dkt. 6. For the reasons that follow, the Court will grant the Board’s motion and dismiss

this case for lack of jurisdiction under Rule 12(b)(1).

I. BACKGROUND

On August 21, 2023, Mr. Sharp, a prisoner proceeding pro se, filed suit against the

American Legion and James E. Jackson in D.C. Superior Court for legal malpractice arising out

of their representation of Mr. Sharp in administrative proceedings before the Board of Veterans’

Appeals. See Compl., at 1, 5, Sharp v. American Legion, 2023-CAB-005322 (D.C. Super. Ct.

Aug. 21, 2023). On December 21, 2023, Sharp filed a subpoena with the Superior Court asking

the Board to produce various documents by February 2, 2024. See Subpoena, American Legion,

2023-CAB-00532 (D.C. Super. Ct. Dec. 21, 2023). Thereafter, on March 25, 2024, Sharp

amended his complaint, naming the Board as a defendant and seeking $20,000 for the Board’s

alleged failure to comply with the subpoena, as well as $500 for each day the Board remains in non-compliance. See Am. Compl. at 1, American Legion, 2023-CAB-00532 (D.C. Super. Ct. Mar.

25, 2024).

Subsequently, Sharp brought two separate actions against the Board in D.C. Superior

Court, both seeking damages for the Board’s non-compliance with the subpoena in 2023-CAB-

00532. The first action sought $20,000 plus $500 for each day that the Board continued to be non-

compliant with the subpoena. See Sharp v. Dep’t of Veteran Affs., Bd. of Appeals, No. 24-cv-1144

(D.D.C.), Compl., Dkt. 1-1. The second sought $8,500 for the Board’s failure to comply with the

subpoena. See Sharp v. Dep’t of Veteran Affs., Bd. of Appeals, No. 24-cv-1345 (D.D.C), Compl.,

Dkt. 1-1. Sharp marked the first action as an administrative proceeding petition, see No. 24-cv-

1144, Compl. at 3, and the second action as a tort suit for negligence, see No. 24-cv-1345, Compl.

at 6.

The Board properly removed the complaints pursuant to

(a)(1). 1 See No.

24-cv-1144, Notice of Removal, Dkt. 1; No. 24-cv-1345, Notice of Removal, Dkt. 1. The Board

then moved to consolidate the two actions. See No. 24-cv-1144, Mot. to Consolidate, Dkt. 5; No.

24-cv-1345, Mot. to Consolidate, Dkt. 4. The Court granted the latter motion and consolidated the

two complaints into the instant matter. See Minute Order of June 18, 2024.

The defendant moves to dismiss for lack of subject matter jurisdiction and for failure to

state a claim. Dkt. 6.

1

(a)(1) permits removal of a civil action commenced in a State court against an agency of the United States relating to “any act under color of such office.” § 1442(a)(1). “An act under color of such office requires removal to be predicated on the allegation of a colorable federal defense.” In re Subpoena in Collins,

(D.C. Cir. 2008). Because the Board raises sovereign immunity as a defense, that standard is met here. See id.; Mot. to Dismiss at 5.

2 II. LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss an action

for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Because “[s]overeign immunity is

jurisdictional in nature,” FDIC v. Meyer,

(1994), claims barred by the United

States’ sovereign immunity are “subject to dismissal under Rule 12(b)(1),” Clayton v. District of

Columbia,

(D.D.C. 2013). When reviewing a motion to dismiss for lack

of jurisdiction, the court must “assume the truth of all material factual allegations in the complaint

and construe the complaint liberally.” Am. Nat. Ins. Co. v. FDIC,

(D.C. Cir.

2011) (internal quotation marks omitted). At the same time, plaintiffs bear the burden of

establishing subject-matter jurisdiction, see Arpaio v. Obama,

(D.C. Cir. 2015),

and courts must raise obstacles to their jurisdiction sua sponte, see Fort Bend Cty. v. Davis,

, 548 (2019). “[W]hile complaints filed by pro se litigants are held to a less stringent

standard than those applied to formal pleadings drafted by lawyers, even a pro se plaintiff bears

the burden of establishing that the Court has subject matter jurisdiction.” Newby v. Obama,

(D.D.C. 2010) (cleaned up).

III. ANALYSIS

As an initial matter, it is difficult to discern the cause of action underlying Sharp’s suit.

Sharp marked his complaint as a suit for negligence, see Compl. at 6, and the Board interpreted

the claim as arising under the Federal Tort Claims Act (“FTCA”),

, see Mot. to

Dismiss at 5. In his opposition and sur-reply, however, Sharp insists that he does not raise a

negligence claim. See Opp’n, Dkt. 8, at 4; Sur-Reply, Dkt. 10, at 2. Rather, he claims the Board

is in contempt of court due to its failure to comply with the subpoena, rendering him entitled to

damages. See Compl., Dkt. 1-1, at 1; Opp’n at 4–5. The Court will liberally construe Sharp’s

3 complaint and consider both possibilities. See Dougherty v. United States,

(D.D.C. 2016) (“It is well established that the pleadings of pro se parties are to be ‘liberally

construed.’” (quoting Erickson v. Pardus,

(2007)).

Construing the complaint as a negligence action under the FTCA, there are several

jurisdictional defects. First, while the FTCA waives the United States’ immunity for certain tort

claims,

(b)(1), it does not waive sovereign immunity for suits against specific

agencies, see Coulibaly v. Kerry,

(D.D.C. 2016). Because Sharp names

the Board, rather than the United States, as the defendant, he cannot establish a waiver of sovereign

immunity under the FTCA. See

But even if Sharp had named the United States as the

defendant, the Court would still lack jurisdiction because an FTCA suit may not be brought in

federal court until the claimant has exhausted his administrative remedies. See Randhawa v. DHS,

No. 20-cv-3200-DLF,

, at *2 (D.D.C. Mar. 19, 2022) (citing McNeil v. United

States,

(1993)). Sharp has made no effort to do so. See Opp’n at 5–6.

Moreover, even if these defects were cured, the Court would still lack jurisdiction. Under

the derivative jurisdiction doctrine, “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) (cleaned up). While Congress has eliminated this doctrine for cases removed under

, see

§ 1441(f), it did not do so for cases removed under § 1442, see Merkulov

v. U.S. Park Police,

(D.D.C. 2014). Accordingly, “district courts in this

jurisdiction have consistently found that the derivative jurisdiction doctrine still applies to cases

against federal agencies and officers . . . that are removed solely under § 1442(a).” Biron v.

George, No. 21-3307-CKK,

, at *3 & n.3 (D.D.C. Feb. 3, 2023) (collecting

4 cases). Because this case was removed under § 1442(a), the Court lacks jurisdiction if, prior to

removal, the Superior Court lacked jurisdiction over the original claim. See Merkulov,

. And because the FTCA grants the United States district courts “exclusive jurisdiction”

over civil actions brought against the United States for money damages, the D.C. Superior Court

lacked jurisdiction over the plaintiff’s claims. See

at 130–31 (quoting

).

“Consequently, even though this Court would normally have jurisdiction over the plaintiff’s claim,

following removal under Section 1442, this Court now lacks jurisdiction to hear the dispute.”

. Thus, construing Sharp’s complaint as a negligence action under the FTCA, it must be

dismissed under Rule 12(b)(1).

Similarly, construing the complaint as an attempt to enforce the subpoena through the

contempt power, the Court still lacks jurisdiction. “A state subpoena commanding a federal

agency to produce its records . . . violates federal sovereign immunity.” Collins,

.

And “because a federal court’s jurisdiction upon removal is derivative of the state court’s, the

federal court in a removed action is also barred from enforcing a subpoena against the federal

government.” Houston Bus. J., Inc. v. Off. of Comptroller of Currency, U.S. Dep’t of Treasury,

(D.C. Cir. 1996); see also Santini v. Herman,

(D.D.C.

2006) (“This Court is without jurisdiction to enforce a Superior Court subpoena against the federal

government.”). Because the Board’s sovereign immunity deprives the Superior Court of

jurisdiction to enforce a subpoena against it, this Court lacks jurisdiction. 2

2 The proper procedure for a state-court litigant seeking to compel a non-party federal agency to produce documents is to “request the documents from the federal agency pursuant to the agency’s regulations . . . If the agency refuses to produce the requested documents, the sole remedy for the state-court litigant is to file a collateral action in federal court under the APA.” Houston Bus. J.,

. In any event, neither a federal nor a state court has jurisdiction to enforce a state- court-issued subpoena against a federal agency. See

5 For these reasons, the Court will grant the Board’s motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Accordingly, it is

ORDERED that the defendant’s Motion to Dismiss, Dkt. 6, is GRANTED. It is further

ORDERED that this consolidated action is DISMISSED without prejudice.

SO ORDERED.

________________________ DABNEY L. FRIEDRICH February 14, 2025 United States District Judge

6