Copley v. National Energy Technology Laboratory et al
Filing
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MEMORANDUM OPINION AND ORDER; adopting the 10 Proposed Findings and Recommendation as it recommends dismissal of this action; granting the government's 3 Motion to Dismiss; denying the plaintiff's 6 MOTION to Remand; and dismissing the [1-1] Complaint and 6 Amended Complaint. Signed by Judge Thomas E. Johnston on 3/30/2012. (cc: attys; any unrepresented party) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JAMES COPLEY,
Plaintiff,
v.
CIVIL ACTION NO. 2:11-cv-00416
UNITED STATES DEPARTMENT
OF ENERGY, NETL, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the United States’s motion to dismiss [Docket 3] and the plaintiff’s
motion to remand [Docket 6]. This action was referred to the Honorable Mary E. Stanley, United States
Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Stanley has submitted her PF&R
and recommended that the Court grant the motion to dismiss. On September 29, 2011, the plaintiff
filed timely objections to the PF&R. (Docket 11.) For the reasons that follow, the PF&R is
ADOPTED only to the extent it recommends dismissal; the plaintiff’s motion to remand [Docket 6]
is DENIED; and the government’s motion to dismiss [Docket 3] is GRANTED.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiff James Copley filed the complaint in this action against the “United States Department
of Energy, NETL” on April 26, 2011, in the Circuit Court of Kanawha County, West Virginia. (Docket
1-1 at 4.) Although the bulk of the complaint is devoted to reciting verbatim state and federal statutory
and case law that Plaintiff believes supports his cause of action, he never expressly identifies any cause
of action. Nonetheless, due in part to the fact that the United States did not challenge the factual
sufficiency of the complaint, the Court infers that Plaintiff intended to plead a case of age
discrimination against the National Energy Technology Laboratory (“NETL”), a former employer of
Plaintiff, which is owned and operated by the United States Department of Energy (“DOE”).
The complaint alleges that Plaintiff “was a former employee of the United States Department
of Energy at the Morgantown Energy Technology Center” from October 1985 through March 1990,
working as an engineer. Plaintiff states that he was successful in his work and received several
promotions while employed for DOE in the 1980s and 1990. He voluntarily resigned his employment
to pursue an advanced degree in June 1990. Plaintiff then alleges that “[o]n or about July 2009, the
plaintiff desired to return to work and applied for an advertised opening at [NETL] (formerly the
Morgantown Energy Technology Center), the plaintiff’s former place of employment.” (Docket 1-1
at 4.) He alleges that, despite being fully qualified, he received a job refusal letter in August 2009. The
remainder of the complaint recites various sections of the West Virginia Human Rights Act, Title VII
of the Civil Rights Act, the Age Discrimination in Employment Act (“ADEA”), and the West Virginia
Arbitration Act.
The United States, acting “on behalf of the United States Department of Energy, National
Energy Technology Laboratory,” removed this case from state court on June 14, 2011. (Docket 1 at
1.) In conjunction with removal, the United States filed a motion to dismiss the complaint for lack of
subject matter jurisdiction. (Docket 4.) The motion argues two bases for jurisdictional deficiency: (1)
Plaintiff failed to properly serve NETL; and (2) Plaintiff failed to exhaust his administrative remedies
prior to filing suit. (Id. at 1-2.) Plaintiff filed an amended complaint and motion to remand on April
20, 2011. In that filing, Plaintiff argues that removal was untimely and that the district court lacks
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subject matter jurisdiction, although he believes the state circuit court possesses jurisdiction. (Docket
6 at 1-2, 6-8.) On July 25, 2011, Plaintiff responded to the motion to dismiss. (Docket 8.) He argues
that the amended complaint no longer cites to federal discrimination statutes (only the West Virginia
Human Rights Act), and therefore the case is not one arising under the laws or Constitution of the
United States, nor does diversity of citizenship exist. He also argues that NETL (and not DOE) is the
only proper defendant to this lawsuit, and therefore jurisdiction cannot be premised on the United States
being a party.
On September 12, 2011, United States Magistrate Judge Mary E. Stanley recommended that the
government’s motion to dismiss be granted and Plaintiff’s motion to remand be denied. (Docket 10 at
7-8.) Regarding the motion to dismiss, the magistrate judge specifically found that Plaintiff failed to
exhaust his administrative remedies and ineffectively served process on the United States pursuant to
Rule 4(i) of the Federal Rules of Civil Procedure. Regarding Plaintiff’s motion to remand, the Magistrate
Judge found the government’s removal both timely, since service was not accomplished in accord with
Rule 4(i), and jurisdictionally proper. Objections to the Magistrate Judge’s proposed findings and
recommendation (“PF&R”) were due on September 29, 2011. On September 29, 2011, Plaintiff filed
a motion to amend his complaint, strike the PF&R, and recuse the Magistrate Judge from further
consideration of his case. (Docket 11.) The United States responded on October 4, 2012. (Docket 12.)
II. DISCUSSION
A. Parties
There appears to be some confusion among the parties, and particularly Plaintiff, as to whether
there are one or two defendants to this civil action. The complaint and summons name a single
defendant: “United States Department of Energy, NETL” and “United States DOE (NETL),”
respectively. (Docket 1-1 at 1, 4.) The notice of removal was filed on behalf of a single defendant: “the
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United States Department of Energy, National Energy Technology Laboratory.” (Docket 1 at 1.) The
motion to dismiss was filed on behalf of “defendant United States Department of Energy, National
Energy Technology Laboratory.” (Docket 3 at 1.) In his amended complaint and motion to remand,
Plaintiff for the first time names “United States Department of Energy” and “National Energy
Technology Laboratory” as “Defendants.” (Docket 6 at 1.) In that motion, most likely attempting to
defeat federal jurisdiction, Plaintiff argues that NETL is not a government agency. (Id. at 2.) However,
in his memorandum in response to the motion to dismiss, Plaintiff states that his complaint is intended
to name only NETL. (Docket 8 at 6 (“[T]he specific government entity in the Plaintiff’s complaint,
NETL, is in West Virginia and therefore does not qualify as a foreign entity.”).) The document
purporting to be an amended complaint sets forth no facts regarding Plaintiff’s claims. Instead, it
attempts to explain the DOE’s national laboratories system and argues for remand to state court, and it
is therefore best considered a motion to remand and memorandum in support. Therefore, due to
significant ambiguity regarding the inclusion of DOE as a separate defendant in this case, the Court will
consider NETL as the sole defendant.
B. Plaintiff’s Objections to the PF&R
Plaintiff’s objections to the PF&R are largely unresponsive to the Magistrate Judge’s
recommendations. The document being construed as objections to the PF&R is titled “Motion to Amend
Complaint & Recuse Current Presiding Magistrate Judge Pursuant to Rule 12(f) & 12(g) and the
following.” (Docket 11 at 1.) As the title indicates, Plaintiff devotes a majority of this nearly-40-page
document to arguing for the recusal of Magistrate Judge Stanley because she decided past cases
involving Plaintiff unfavorably to him. He recites 28 U.S.C. § 455, makes tenuous due process and equal
protection arguments, and generally cites a plethora of tangential case law. Plaintiff also states that he
is due special treatment in this proceeding because of his physical impairments and pro se status.
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Factually speaking, approximately ten pages of the document are devoted to a wikipedia definition of
“government entity” and a detailed explanation of what NETL is and does. The document moves the
Court for entry of judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. Finally,
Plaintiff argues that removal was untimely under 28 U.S.C. § 1446(b).
To the extent Plaintiff challenges the PF&R’s recommendation regarding the timeliness of
removal, that argument is addressed below. In all other respects, the objections to the PF&R are
frivolous and unresponsive to the PF&R, and they will therefore not be considered. See Thomas v. Arn,
474 U.S. 140, 150 (1985) (court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the Magistrate Judge as to those portions of the findings or
recommendation to which no objections are addressed).
C. Motion to Remand: 30-day Rule
Prior to reaching the merits of the government’s motion to dismiss the complaint, the Court must
address Plaintiff’s argument that removal from state court was improper. In contrast to 28 U.S.C. § 1441,
which permits removal to federal court whenever a complaint could have been brought there originally,
28 U.S.C. § 1442 authorizes removal of any civil action or criminal prosecution against the United States
or its agencies or officers, provided the defendant is alleged to have acted in his or her official capacity.
See generally 28 U.S.C. § 1442(a)(1). Thus, under § 1442, the source of a plaintiff’s cause of action is
irrelevant; a case may proceed in federal court as long as: (1) the defendant is an agency or officer of the
federal government; (2) that was acting in the course of his or her official duties during the alleged
misconduct; and (3) the state court had jurisdiction to hear the case. Although Plaintiff challenges the
characterization of NETL as an agency of the federal government, the Court is satisfied that NETL falls
within the purview of § 1442. In contrast to other laboratories in DOE’s network of national labs, NETL
“is federally owned and operated [by DOE], a departure from the contractor-operated model that is the
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norm within the DOE laboratory system.” See NETL: Mission and Overview, http://netl.doe.gov/about/
mission.html (last visited March 28, 2012); see also Philips v. Pitt County Mem’l Hosp., 572 F.3d 176,
180 (4th Cir. 2009) (in ruling on a motion brought pursuant to Rule 12(b), court may take judicial notice
of matters of public record).
The procedure for removal by a federal agency or officer under § 1442, like all statutes
authorizing removal to federal court, is governed by 28 U.S.C. § 1446. E.g., North Carolina v.
Ledgester, No. 4:11–MJ–1082, 2011 WL 2559792, at *1 (E.D.N.C. June 28, 2011) (expressly applying
§ 1446(c)’s 30-day removal requirement to federal officer removal under § 1442); cf. 28 U.S.C. §
1446(g) (applying related 30-day rule to case removable under § 1442(a) that requests judicial order for
testimony or documents). Under § 1446, “[t]he notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . .” §
1446(c)(1). A case must be remanded to state court if the notice of removal is not filed within 30 days
of effective service of process, provided the plaintiff moves for remand within 30 days of removal. See
§ 1447(c).
In this case, Plaintiff filed his complaint in state court on April 26, 2011. (Docket 1-1 at 4.)
Plaintiff appears to have served NETL by certified mail at its Morgantown, West Virginia, facility on
April 29, 2011, as evidenced by a return mail receipt and corroborated by the state court docket sheet.
(Docket 6 at 10, Docket 9 at 1.) The United States, acting on behalf of NETL, removed the case to
federal court on June 14, 2011, approximately 15 days after the 30-day removal window expired. Thus,
if service on NETL by certified mail was effective on April 29, 2011, the Court must remand this case
to state circuit court as untimely removed.
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The issue of service of process was argued by the United States in its motion to dismiss. There,
the government argues and Plaintiff does not refute, that neither the United States Attorney for the
Southern District of West Virginia nor the Attorney General of the United States were served with the
complaint as required by Federal Rule of Civil Procedure 4(i). (Docket 4 at 2.) Although this argument
was accepted by the Magistrate Judge, it is unclear to the Court why the Federal Rules of Civil Procedure
provide the appropriate service requirement for an action initiated in state court.
It appears that, in making its argument, the United States has overlooked the fact that the Federal
Rules do not apply pre-removal. Rule 81(c) of the Federal Rules of Civil Procedure provides that
“[t]hese rules apply to a civil action after it is removed from a state court.” In a case procedurally similar
to this one, the Eighth Circuit stated:
It is axiomatic that state rules of civil procedure apply to state court actions, and the
federal rules of civil procedure do not. For that reason alone, [Plaintiff] did not have to
comply with Rule 4 of the Federal Rules of Civil Procedure when serving the [Social
Security Administration] with a copy of a supplemental complaint in a state court
garnishment action.
Lang v. Social Sec. Admin., 612 F.3d 960, 866 (8th Cir. 2010); see also Romo v. Gulf Stream Coach, Inc.,
250 F.3d 1119, 1122 (7th Cir. 2001) (“The Federal Rules make clear that they do not apply to filings in
state court, even if the case is later removed to federal court . . . . [F]ederal courts may apply state
procedural rules to pre-removal conduct.”) (citations omitted). Indeed, as countless decisions make clear,
state procedural rules apply pre-removal. The Court perceives no reason why the involvement of the
United States warrants departure from that rule. Cf. Wilson v. U.S. Dep’t of Agric., 584 F.2d 137, 141
(6th Cir. 1978) (holding that Secretary of Agriculture could not require state court to follow federal
service rules and noting that “[t]he traditional principle of federalism is that, as long as state rules of
practice do not ‘impose unnecessary burdens upon rights of recovery authorized by federal laws,’ neither
Congress nor the federal courts has the power to change them.”) (citation omitted). Accordingly, service
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on NETL was proper, and therefore removal untimely, if Plaintiff served NETL in accordance with state
service of process rules in April 2011.
Finding no specific provision in the West Virginia Code dealing with service of process on the
federal government or its agencies, the Court turns to Rule 4 of the West Virginia Rules of Civil
Procedure, which deals more broadly with service of process. The most applicable subsection of Rule
4 appears to be (d)(7), which relates to service on foreign corporations. Rule 4(d)(7) simply states that
service may be accomplished upon a foreign corporation qualified to transact business in West Virginia
“by delivering or mailing in accordance with paragraph (1) above a copy of the summons and complaint
as provided in Rule 4(d)(5).” W. Va. R. Civ. P. 4(d)(7). Subsection (d)(5) provides:
(d) Personal or substitute service shall be made in the following manner:
(5) Domestic Private Corporation. Upon a domestic private corporation,
(A) by delivering or mailing in accordance with paragraph (1) above a copy of the
summons and complaint to an officer, director, or trustee thereof; or, if no such
officer, director, or trustee be found, by delivering a copy thereof to any agent of
the corporation . . .; or
(B) by delivering or mailing in accordance with paragraph (1) above a copy
thereof to any agent or attorney in fact authorized by appointment or by statute
to receive or accept service in its behalf.
Id. R. 4(d)(5). Rule 4(d)(1), in turn, provides that service may be accomplished by, inter alia, “[t]he
clerk sending a copy of the summons and complaint to the individual to be served by certified mail,
return receipt requested, and delivery restricted to the addressee.”
The record in this case demonstrates that the circuit court clerk sent a copy of the summons and
complaint to the address listed on NETL’s public website for its Morgantown facility. (Docket 6 at 10.)
Return receipt was requested and received on April 29, 2011, and delivery was restricted, as evidenced
by the receipt. Someone at NETL’s facility, a “D. Ayers,” signed for the documents, although he failed
to indicate whether he is an agent of NETL on the return receipt. This Court has held in the past that a
signed return receipt bearing the correct address for a defendant will be held effective service upon an
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agent of a corporation. See Hanson and Morgan Livestock, Inc. v. B4 Cattle Co., No. 5:07-cv-00330,
2007 WL 4305606, at *6 (S.D. W. Va. Dec. 7, 2007). There is no reason to depart from that holding in
this case. Service was effective on April 29, 2011. NETL was required by 28 U.S.C. § 1446(b) to
remove its case to federal court no later than May 29, 2011, if at all. NETL failed to do so, and as such,
Plaintiff’s motion to remand for untimely removal is meritorious.
However, pursuant to the following discussion, the Court refuses to remand this action to state
court. Instead, the case must be dismissed, and the motion to remand [Docket 6] is therefore DENIED.
D. Sua Sponte Subject Matter Jurisdiction Inquiry
Apart from the above analysis, the Court must also satisfy itself that subject matter jurisdiction
is appropriate in order to maintain this suit in federal court. As mentioned, “a federal court’s jurisdiction
upon removal under § 1442(a)(1) is derivative of the state court’s jurisdiction.” See, e.g., Palmer v. City
Nat’l Bank of W. Va., 498 F.3d 236, 245-46 (4th Cir. 2007); Kasi v. Angelone, 300 F.3d 487, 504 n.6 (4th
Cir. 2002); see also In re Backer, No 10-Civ.-862, 2010 WL 2816789, at *9 (S.D.N.Y. July 16, 2010)
(collecting cases). Hence, to discern its subject matter jurisdiction, the Court looks to the subject matter
jurisdiction of the state circuit court.
Before venturing further into this analysis, however, it is necessary to recognize that Plaintiff’s
claims of employment discrimination against NETL based on his age must be brought pursuant to Title
VII and the ADEA alone. In no uncertain terms, the Supreme Court has held that Congress intended
Title VII to constitute the exclusive, preemptive administrative and judicial scheme for the redress of
federal employment discrimination. Brown v. Gen. Servs. Admin., 425 U.S. 820, 829, 835 (1976). To
the extent that Title VII may not completely foreclose Plaintiff’s invocation of state discrimination law,
the ADEA certainly does. Similar to the Supreme Court’s holding regarding the exclusiveness of Title
VII, the Fourth Circuit has unequivocally stated that “the ADEA provides the exclusive judicial remedy
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for claims of age discrimination.” Zombro v. Baltimore City Police Dep’t, 868 F.2d 1364, 1369 (4th Cir.
1989) (citing Platt v. Burroughs Corp., 424 F. Supp. 1329, 1340 (E.D. Pa.1976)). Plaintiff is therefore
limited to asserting these two federal statutory causes of action to proceed in either state or federal court.
As a matter of law, the state circuit court does not possess subject matter jurisdiction over
Plaintiff’s Title VII and ADEA claims for two reasons.
First, Plaintiff failed to exhaust his
administrative remedies prior to filing suit in Kanawha County Circuit Court. Second, the United States
is not susceptible to suit in state court for alleged violations of Title VII or the ADEA because it has not
so waived its sovereign immunity.
The Fourth Circuit has set forth the standard regarding exhaustion in the context of Title VII:
Before a plaintiff may file suit under Title VII . . . , he is required to file a charge
of discrimination with the EEOC. See 42 U.S.C.A. § 2000e-5(f)(1) (West 2003) (Title
VII). Title VII establishes two possible limitation periods for filing a discrimination
charge with the EEOC. See 42 U.S.C.A. § 2000e-5(e)(1). “The basic limitations period
is 180 days after the alleged unlawful employment practice. However, the limitations
period is extended to 300 days when state law proscribes the alleged employment practice
and the charge has initially been filed with a state deferral agency.” Tinsley v. First Union
Nat’l Bank, 155 F.3d 435, 439 (4th Cir. 1998).
Jones v. Calvert Gp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). There is no indication that Plaintiff
pursued any remedy with a state agency prior to filing suit, and it therefore appears that he was required
to file his Title VII claim with the EEOC no later than 180 days after the occurrence of the alleged
discrimination, or sometime around February 2010.1 In contrast to Title VII, federal employees
complaining of age discrimination do “not have to seek relief from the employing agency or the EEOC
at all.” Stevens v. Dep’t of Treasury, 500 U.S. 1, 6 (1991). Rather, federal employees may pursue either
of two options to bring an age discrimination claim under the ADEA. First, “[a]n individual may invoke
the EEOC’s administrative process [which is the same as for Title VII, above] and then file a civil action
This date is derived from the allegation in the complaint that Plaintiff received a letter from
NETL in August 2009 indicating that Plaintiff’s candidacy was no longer being considered.
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in federal district court if he is not satisfied with his administrative remedies.” Id. at 5-6. Second, “[a]
federal employee complaining of age discrimination . . . can present the merits of [his claim] to a federal
court in the first instance.” Id. at 6. However, where an individual alleging age discrimination has not
filed a complaint with the EEOC, he must give no less than thirty days’ notice to the EEOC of his intent
to file such an action, and this notice must be received within 180 days of the date when the alleged
unlawful practice occurred. See 29 U.S.C. § 633a(d). Therefore, at a minimum under the ADEA,
Plaintiff must have notified the EEOC of his intent to file suit against NETL no later than February 2010.
The effect of a failure to so notify the EEOC is quite serious:
Importantly, a failure by the plaintiff to exhaust administrative remedies concerning a
Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.
See Davis v. North Carolina Dep’t of Corr., 48 F.3d 134, 138-40 (4th Cir. 1995) (holding
that removal of Title VII action was improper because plaintiff’s failure to exhaust
administrative remedies deprived the federal courts of subject matter jurisdiction). The
same is true of claims made under the ADEA. See 29 U.S.C.A. § 626(d); Vance v.
Whirlpool Corp., 707 F.2d 483, 486-89 (4th Cir. 1983) (holding that plaintiff’s failure to
wait 60 days after filing federal administrative charge before bringing suit in federal
district court deprived district court of subject matter jurisdiction).
Jones, 551 F.3d at 300-01. The United States argues that Plaintiff failed to file any charge with the
EEOC at any point. The Magistrate Judge acknowledged as much:
[Plaintiff] failed to file a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). ECF No. 4, at 2-3. This contention is supported by
the Declaration of Frank Vaccarella, Attorney Advisor for the Department of Energy,
who consulted with Nancy Vargas at NETL; both confirm that the plaintiff did not file
a discrimination complaint with either agency. ECF No. 3-1, at 1-2. The plaintiff does not
dispute this contention that he did not pursue his administrative remedies.
(Docket 10 at 4.) At no point in his 37-page objections to the PF&R does Plaintiff so much as allege that
he complied with the statutory prerequisites to filing suit pursuant to Title VII or the ADEA. As such,
no court—state or federal—has subject matter jurisdiction to entertain this suit.
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The state circuit court also lacks subject matter jurisdiction because the United States has not
waived its sovereign immunity to be sued pursuant to these statutes in state court. The Fourth Circuit
recently addressed the federal government’s amenability to suit under Title VII. In Bullock v.
Napolitano, the Fourth Circuit held that although congressional silence on the subject of concurrent
jurisdiction in the context of Title VII permits an inference that state courts may adjudicate Title VII
claims involving private employers, Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823 (1990), no
such inference may be drawn with respect to the federal government as an employer. 666 F.3d 281, 28485 (4th Cir. 2012).
The court of appeals recognized, as did the Supreme Court in Yellow Freight, that Title VII is
silent on whether state courts may hear suits to enforce Title VII rights. The Yellow Freight Court
instructed that, at least in the case of private employers, Title VII’s silence must be resolved in favor of
concurrent jurisdiction. 494 U.S. at 823. In the Fourth Circuit’s words:
[Yellow Freight] recognized a presumption that state courts are competent to adjudicate
claims under federal law. [Then], it noted that Title VII, while authorizing suits in United
States courts and remaining “completely silent” about suits in state courts, did not rebut
this presumption by affirmatively divesting state courts of “their presumptively
concurrent jurisdiction.”
666 F.3d at 285 (emphasis in original). The Fourth Circuit then held that where the United States is a
named defendant, there exists no presumption of concurrent jurisdiction. Instead, “[t]he United States
has sovereign immunity from such suits and any waiver of that immunity must be ‘unequivocally
expressed’ in a statutory provision, which the courts must construe in favor of the United States.” Id.
(citing Lane v. Pena, 518 U.S. 187, 192 (1996)). Title VII’s silence regarding state court jurisdiction,
therefore, is insufficient to waive sovereign immunity whenever, as here, the federal government is a
defendant. Id. at 285-86. Thus, state courts lack subject matter jurisdiction to hear Title VII cases
against the United States and its agencies.
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Plaintiff’s ADEA claim must meet a similar fate. 29 U.S.C. § 633a relates to age discrimination
in the specific context of federal employment. It provides that “[a]ny person aggrieved may bring a civil
action in any Federal district court of competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c) (emphasis added). This provision is in
contrast to the enforcement provision applicable to private employers: “Any person aggrieved may bring
a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate
the purposes of this chapter.” § 626(c)(1) (emphasis added). The analysis is therefore much simpler in
the ADEA context. Congress clearly intended exclusive federal jurisdiction when the United States or
its agencies are sued for alleged violations of the ADEA. The reasoning behind Bullock applies more
forcefully to federal employment cases under the ADEA, and the Court therefore finds that state courts
do not possess subject matter jurisdiction to adjudicate such claims.
Based on the foregoing discussion, the state circuit court lacks subject matter jurisdiction for two
reasons. Plaintiff failed to notify the EEOC of his intent to sue. More importantly, regardless of
Plaintiff’s administrative actions in this case, if any, the United States has not waived its sovereign
immunity, and it cannot therefore be required to answer in state court. Upon removal pursuant to 28
U.S.C. § 1442(a), this Court acquires the subject matter jurisdiction of the state court from which the case
was removed. Since the state court possessed no subject matter jurisdiction, neither does this Court. In
light of the foregoing, the United States’ motion to dismiss pursuant to Rule 12(b)(1) is GRANTED,
though for reasons discussed above. See Bullock, 666 F.3d at 285 (upholding dismissal in similar
circumstances).
III. CONCLUSION
The PF&R is ADOPTED insofar as it recommends dismissal of this action; the
government’s motion to dismiss [Docket 4] is GRANTED; Plaintiff’s motion to remand [Docket
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6] is DENIED; and the complaint [Docket 1-1] and amended complaint [Docket 6] are
DISMISSED.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
March 30, 2012
_________________________________________
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE
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