Lee v. Taylor
Filing
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MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 8/8/2012. (c/m to plaintiff by chambers 8/9/12 rs) (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
YULONDA LEE
Plaintiff,
v.
ROSE TAYLOR
Defendant.
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Civil No. PJM 11-3212
MEMORANDUM OPINION
Yulonda Lee, pro se, obtained a Temporary Peace Order in Prince George’s County
District Court against Rose Taylor for workplace harassment. The case was removed to this
Court, and on December 16, 2011, Taylor filed a Motion to Dismiss, or Alternatively, for
Summary Judgment [Paper No. 20], to which Lee has failed to respond despite ample time and
opportunity. Taylor has also filed a Motion to Dismiss for Lack of Prosecution [Paper No. 22].
For the following reasons, the Court GRANTS Taylor’s Motion for Summary Judgment,
rendering Taylor’s initial Motion to Dismiss and separate Motion to Dismiss for Lack of
Prosecution MOOT.1
I.
The facts are straightforward. Lee is a part-time Flexible Mail Carrier for the United
States Postal Service (“USPS”) assigned to its Oxon Hill, Maryland facility. Taylor is a USPS
Customer Service Supervisor who sometimes serves as “Acting Manager” at facilities in the
greater Washington metropolitan area while a “regular” supervisor is on leave.
1
The Court agrees with Taylor that Lee’s failure to comply with the Court Order’s Order of January 27, 2012,
warning her about the consequences of not filing a response, constitutes an alternative ground for dismissal under
Fed. R. Civ. P. 41(b).
1
On or about August 11, 2011, Taylor was assigned to the Oxon Hill building as “Acting
Manager.” Lee alleges that at some point that day, Taylor grabbed her by the shoulders and
raised her hand to slap Lee. Lee also claims that on the previous day, Taylor derided her as
being “worthless/useless” over the facility’s public address system.
Taylor denies ever grabbing Lee inappropriately or criticizing her over the public address
system. She says that on the day in question she directed Lee to “case” the mail for a particular
mail route.2 Lee appeared irritated by the instruction and lost her balance while retrieving a mail
container or removing mail from that container. Taylor claims she touched Lee’s arm to prevent
her from falling, after which Lee began yelling, “[c]all the [p]olice, she put her hands on me.
Call the police, I should call the police because you touched me.” Taylor asked Lee to join her
in an office, accompanied by a union representative, to talk about the incident. Lee refused,
returned to work, and reported no physical injury.
On October 31, 2011, more than two and a half months after the aforementioned incident,
Lee petitioned the Prince George’s County District Court for a Peace Order against Taylor. The
Court granted a Temporary Peace Order and scheduled a hearing to determine whether a Final
Peace Order should be entered.3 Prior to the hearing, Taylor removed the case to this Court
under 28 U.S.C. § 1441 and § 1442(a)(1), and then filed a Motion to Dismiss, or Alternatively,
for Summary Judgment. Lee has failed to respond to Taylor’s Motion despite the Court’s Order
warning her about the consequences of not filing any response. Taylor subsequently filed a
Motion to Dismiss for Lack of Prosecution, which Lee again did not respond to.
2
According to Taylor, “casing” mail includes obtaining mail from postal management and preparing it for delivery
by a carrier or truck along an established route.
3
The Temporary Peace Order expired after November 15, 2011.
2
II.
A.
In evaluating a motion to dismiss pursuant to the Federal Rules of Civil Procedure
12(b)(6), the “court accepts all well-pled facts as true and construes these facts in the light most
favorable to the plaintiff . . . .” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted). However, the court need not accept as true “legal
conclusions, elements of a cause of action, and bare assertions devoid of further factual
enhancement.” Id. There must be “more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain sufficient well-pled facts to
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The factual
allegations must “permit the court to infer more than the mere possibility of misconduct.” Iqbal,
129 S. Ct. at 1950. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
B.
Pursuant to Fed. R. Civ. P. 56(a), “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” The “party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must
‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original)
(quoting Fed. R. Civ. P. 56(e)). The court should “view the evidence in the light most favorable
3
to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the
evidence or assessing the witnesses’ credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc.,
290 F.3d 639, 645 (4th Cir. 2002). The court, however, must also abide by the “affirmative
obligation of the trial judge to prevent factually unsupported claims and defenses from
proceeding to trial.” Bouchat, 346 F.3d at 526 (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79
(4th Cir. 1993)). Summary judgment is appropriate where a party fails to make a showing
sufficient to establish the elements essential to the party’s claim and on which the party will bear
the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There must be
sufficient evidence for a reasonable jury to find for the nonmoving party, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 252 (1986), and a “mere scintilla of proof . . . will not suffice to
prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
III.
Taylor asserts that the petition for a Peace Order should be dismissed or summary
judgment granted for lack of subject matter jurisdiction on the basis of sovereign immunity. The
Court finds as an initial matter that it does have subject matter jurisdiction under 28 U.S.C. §
1442(a)(1). But as to the merits of Taylor’s sovereign immunity defense, the Court concludes
that the action is barred.
A.
Pursuant to 28 U.S.C. § 1442,4 Congress granted federal district courts jurisdiction over
cases removed from state court where the defendant is a federal officer. Section 1442 is not,
however, an automatic grant of subject matter jurisdiction. “Rather, it is the raising of a federal
4
28 U.S.C. § 1442(a)-(a)(1) states: “A civil action or criminal prosecution that is commenced in a State court and
that is against or directed to any of the following may be removed by them to the district court of the United States
for the district and division embracing the place wherein it is pending: The United States or any agency thereof or
any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or
individual capacity, for or relating to any act under color of such office . . . .”
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question in the officer's removal petition that constitutes the federal law under which the action
against the federal officer arises for Art. III purposes.” Mesa v. California, 489 U.S. 121, 136
(1989). An officer’s removal petition raises a federal question if it asserts “a ‘colorable’ federal
defense to the action.” Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir. 1994) (citing Mesa, 489
U.S. at 136-39); see also id. (“By raising a colorable defense in his removal petition, the
defendant-official transforms the otherwise nonremovable state-law action into one that falls
within the federal court’s ‘arising under’ jurisdiction.”). To be “colorable,” the federal defense
must be “plausible,” Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996)
(citing Mesa, 489 U.S. at 129), and the defendant must “establish that there is a causal
connection between plaintiffs’ claims and acts [the defendant] performed under color of federal
office.” Pack v. AC & S, Inc., 857 F. Supp. 26, 28 (D. Md. 1994) (citing Mesa, 489 U.S. at 12931). Put another way, “for federal officers to invoke removal jurisdiction under § 1442 they
must show that an action has been commenced against them in a state court, which is based on
an act the federal officer performed while on duty at the officer's place of federal employment.”
Bosaw v. Nat’l Treasury Emps. Union, 887 F. Supp. 1199, 1206 (S.D. Ind. 1995).
In the present case, Taylor’s federal defense of sovereign immunity is “colorable” and not
“without foundation.” Marley v. Elliot Turbomachinery Co., 545 F. Supp. 2d 1266, 1271 (S.D.
Fla. 2008). She has, moreover, shown a “causal connection,” affirming in her declaration that
the actions Lee complains about were performed under color of both Lee’s and Taylor’s
positions as USPS employees. “Casing” the mail––and by extension, directing USPS
subordinates to “case” the mail––is inarguably a function of a USPS employee. At the same
time, the United States Attorney for the District of Maryland has certified that Taylor was acting
within the scope of her employment as an employee of the United States, and even Lee states in
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the petition for a Peace Order that she was harmed “@ the Workplace.” In short, it is
uncontroverted that the events at issue occurred at a USPS facility while Lee and Taylor were
performing their official duties as USPS employees. Because Taylor has raised a colorable
sovereign immunity defense, the Court has removal jurisdiction over the case.5
B.
Turning to the merits of Taylor’s sovereign immunity defense, it is well established that
the United States is immune from suit unless it consents to be sued, United States v. Sherwood,
312 U.S. 584, 586 (1941), and that the plaintiff carries the burden of showing “an unequivocal
waiver of sovereign immunity . . . .” Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005)
(citing Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)). A suit against a government
officer in her official capacity is not a suit against the official but rather a suit against the
official’s office. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore,
“[a]n action seeking specific relief against a federal official, acting within the scope of [her]
delegated authority, is an action against the United States subject to governmental privilege of
immunity.” Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989) (citing Larson v. Domestic
& Foreign Commerce Corp., 337 U.S. 682, 688 (1949)); see also Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency or
federal officers in their official capacities is essentially a suit against the United States, such suits
are also barred under the doctrine of sovereign immunity, unless such immunity is waived.”).
Here, Lee seeks relief against a federal officer acting within the scope of her delegated
authority. As noted above, there is no dispute that the conduct Lee complains about occurred
while Taylor was performing her duties as “Acting Manager” of the postal facility. Thus, in
5
“[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in
a federal court. The officer need not win his case before he can have it removed.” Willingham v. Morgan, 395 U.S.
402, 407 (1969).
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order to avoid the bar of sovereign immunity, Lee must point to a specific, unequivocal waiver of
that immunity. She has not done so. Nor does any statute waive sovereign immunity for
injunctive relief in a state action against a federal officer.6 While the Administrative Procedure
Act, 5 U.S.C. § 702,7 waives immunity for suits seeking injunctive relief against the United
States in federal court, it does not extend the waiver to actions in state court.8 Fed. Nat’l Mortg.
Ass’n v. LeCrone, 868 F.2d 190, 193 (6th Cir. 1989) (“Congress implicitly confined jurisdiction
to the federal courts when it limited the waiver of sovereign immunity contained in section 702
of the Act to claims brought ‘in a court of the United States.’” (quoting 5 U.S.C. § 702)).
Because actions removed pursuant to § 1442(a)(1) must be considered under the doctrine of
derivative jurisdiction, Palmer v. City Nat’l Bank of West Virginia, 498 F.3d 236, 244-45 (4th
Cir. 2007), if the APA does not waive sovereign immunity in Maryland District Court, it cannot
waive sovereign immunity in this Court after removal. Thus, although Taylor’s sovereign
immunity defense presents a colorable issue of federal law that gives the Court removal
jurisdiction, the instant suit cannot go forward because Lee has not shown a waiver expressing
the government’s consent to such an action.
6
Although Taylor suggests that this case may be viewed under the rubric of the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671, et seq., the FTCA is inapplicable because Lee is seeking equitable relief, not monetary damages.
See 28 U.S.C. § 2679(b)(1) (“The remedy against the United States . . . from the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or employment is exclusive
of any other civil action or proceeding for money damages . . . .”) (emphasis added); see also 28 U.S.C. § 1346(b)(1)
(“[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for
money damages . . . .”) (emphasis added).
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5 U.S.C. § 702 states: “A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action
in a court of the United States seeking relief other than money damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an
indispensable party” (emphasis added).
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Maryland courts apply the doctrine of sovereign immunity to suits against federal officials. See, e.g., Burgoyne v.
Brooks, 544 A.2d 343 (Md. Ct. Spec. App. 1988) (affirming the dismissal of a defamation lawsuit by several
General Services Administration employees against a co-worker because the actions of the latter fell within the
purview of absolute immunity).
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IV.
For the foregoing reasons, the Court GRANTS Taylor’s Motion for Summary Judgment
[Paper No. 20]. Her Motion to Dismiss [Paper No. 20] and her Motion to Dismiss for lack of
prosecution [Paper No. 22] are MOOT.
A separate Order will ISSUE.
/s/
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PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
August 8, 2012
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