Grace v. Hughes
MEMORANDUM AND ORDER re: 4 ; IT IS HEREBY ORDERED that defendant's motion to dismiss for lack of subject matter jurisdiction [Doc. #4] is granted.. Signed by District Judge Carol E. Jackson on 12/19/14. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SANDRA M. GRACE,
Case No. 4:14-CV-1771 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss for lack of
subject-matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1).
Plaintiff has not
responded to the motion and the time allowed for doing so has elapsed.
Plaintiff Sandra Grace is an employee of the United States Postal Service. On
October 1, 2014, she filed in state court an ex parte petition for an order of protection
against her supervisor, defendant Jeffery Hughes, alleging that he “aggressively
harassed” her, threatened her employment, and berated her in front of her employees.
Complaint ¶11. She further alleged that he followed her throughout her office and
caused her “to have to work in an abusive and violent place of employment, causing
[her] a great deal of mental stress.” Id. at ¶12. She sought an order restraining
defendant from, among other things, entering her place of employment and
disparaging her to her employees. Id. at ¶15.
On October 20, 2014, defendant removed the action to this Court, pursuant to
28 U.S.C. § 1442(a)(1). This section allows federal officers or those “acting under” any
“agency” or “officer” of the United States to remove to federal court suits brought
against them in state court, when they were acting “in an official or individual capacity,
for or relating to any act under color of such office.” Defendant now moves to dismiss
for lack of subject-matter jurisdiction.
“In order to properly dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993).
When a factual challenge is mounted, the court has authority to consider matters
outside the pleadings. Osborn v. United States, 918 F.2d 724, 728 n.4 (8th Cir. 1990).
On factual challenges to subject matter jurisdiction, plaintiffs are not given the
protections of Rule 12(b)(6). “In short, no presumptive truthfulness attaches to the
plaintiff's allegations.” Id. at 730 (citation omitted). When a district court engages in
a factual review, it inquires into and resolves factual disputes. Faibisch v. Univ. of
Minn., 304 F.3d 797, 801 (8th Cir. 2002). Considering evidence beyond the complaint
does not convert a Rule 12(b)(1) motion to a Rule 56 motion for summary judgment.
Osborn, 918 F.3d at 730.
A recent decision of the Fourth Circuit Court of Appeals is directly on point. In
Hendy v. Bello, 555 F. App’x 224 (4th Cir. 2014), a postal employee filed a state-court
petition for a peace order restraining her supervisor from contacting her or going to
their mutual workplace. The government, acting on behalf of the supervisor, removed
The government correctly argues that plaintiff’s exclusive remedies rest in the
Civil Service Reform Act, 5 U.S.C. §§ 7501, et seq., and Title VII of the Civil Rights Act,
42 U.S.C. §§ 2000e, et seq. However, sovereign immunity provides a more
straightforward means of addressing the issue.
the action to the U.S. District Court for the District of Maryland, which dismissed for
lack of subject matter jurisdiction.
The Fourth Circuit affirmed, finding that there was no waiver of sovereign
immunity. A suit against a government officer in his official capacity is really “a suit
against the official’s office,” and so officers acting within their authority generally
receive sovereign immunity. Id. at 226 (citing Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989)). The employee’s suit could proceed only if Congress has waived
sovereign immunity on these facts. Id. The two possible sources of waiver were the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), and the Postal Reorganization Act
of 1970 (PRA), 39 U.S.C. §§ 101 et seq.
The FTCA applies only to suits for money damages, and thus does not waive
immunity for a suit seeking injunctive relief. Hendy, 555 F. App’x at 226 (citing 28
U.S.C. § 1346(b)). The PRA authorizes the Postal Service “to sue and be sued in its
official name.” See 39 U.S.C. § 401(1). Although “sue and be sued” clauses are
generally liberally construed, they are not absolute waivers of sovereign immunity:
“Sue and be sued” clauses do not waive sovereign immunity in several
circumstances: (1) for types of suits that are “not consistent with the
statutory or constitutional scheme”; (2) when “necessary to avoid grave
interference with the performance of a governmental function”; or (3) for
other reasons that demonstrate congressional intent to apply the “sue
and be sued” clause narrowly.
Hendy, 555 F. App’x at 226 (quoting Loeffler v. Frank, 486 U.S. 549, 554-55 (1988)).
The court found the first two exceptions applied because allowing a state-law injunction
to prevent a federal employee from coming to work “is inconsistent with the principle
of federal supremacy” and “would disturb the federal agency’s internal functions.” Id.
Thus, there was no waiver of sovereign immunity under the FTCA or the PRA and the
district court lacked subject matter jurisdiction.
The Court adopts the reasoning of Hendy v. Bello, 555 F. App’x 224 (4th Cir.
2014), and finds that it lacks subject-matter jurisdiction on sovereign immunity
IT IS HEREBY ORDERED that defendant’s motion to dismiss for lack of subject
matter jurisdiction [Doc. #4] is granted.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 19th day of December, 2014.
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