Divided Fourth Circuit Panel Holds Federal Court Lacks Jurisdiction Over Federal Employee's Title VII Claim Originally Filed in State Court

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Peter O'Hara | Bloomberg Law Bullock v. Napolitano, Secretary, U.S. Department of Homeland Security, No. 10-CV-1222, 2012 BL 13446 (4th Cir. Jan. 23, 2012 ) The majority of a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit held that Willie Bullock could not pursue his race discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in federal court against the U.S. Department of Homeland Security (DHS) because the state court where he originally filed it lacked subject matter jurisdiction. The majority concluded that, while Congress waived sovereign immunity for federal employees' Title VII suits against the U.S., it expressly provided for jurisdiction only in federal courts, so the state court lacked subject matter jurisdiction. Because DHS removed the case under 28 U.S.C. § 1442(a), the district court did not acquire subject matter jurisdiction, even though Bullock might have been able to bring his claim there originally. In dissent, Circuit Judge Roger Gregory opined that federal sector litigants are entitled to file Title VII claims in state court against the U.S. just as private sector litigants are permitted to sue private employers in state court under Title VII.

DHS Dismisses Bullock from Air Marshal Training

In 2006, DHS hired Bullock, an African-American male, into the federal air marshal program. He was assigned to a training center, where he suffered shin splints that impaired his ability to participate fully in some activities. Near the end of the program, he was dismissed and was told that when he recovered from his injuries, he would have to repeat the entire seven-week training to become an air marshal.

District Court Dismisses Title VII Claim for Lack of Subject Matter Jurisdiction

Bullock sued DHS in North Carolina state court, alleging that DHS discriminated against him on the basis of his race in violation of Title VII, among other claims, because it permitted other Caucasian trainees to graduate with injuries that caused similar limitations on their participation. DHS removed the case to federal court as a suit against a federal officer in her official capacity under 42 U.S.C. § 1442(a)(1). The district court granted DHS's motion to dismiss for lack of subject matter jurisdiction on the grounds that sovereign immunity barred Bullock's claims for money damages against the U.S. and its agencies and the district court did not acquire jurisdiction through removal under the derivative jurisdiction doctrine. Bullock v. Napolitano, Secretary, U.S. Department of Homeland Security, No. 09-CV-319 (E.D.N.C. Jan. 19, 2010). Bullock appealed.

State Court Lacked Jurisdiction

Bullock asserted that the state court had jurisdiction over his Title VII claim because Congress waived sovereign immunity for discriminatory actions by the U.S. as an employer under 42 U.S.C. § 2000e-16. Bullock further argued that the Supreme Court's decision in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823 (1990), supported his contention that state courts have concurrent jurisdiction with federal courts over Title VII suits against federal employers. DHS countered that Yellow Freight applies only to private employers, not the U.S. and its agencies, and that a waiver of sovereign immunity must be explicitly stated in a statute, not inferred from the presumption of concurrent state jurisdiction. The majority set forth some basic sovereign immunity principles. "The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941). The Supreme Court also stated that the government's consent to be sued "must be strictly interpreted." Id. at 590. The majority further stated that sovereign immunity is jurisdictional, FDIC v. Meyer, 510 U.S. 471, 475 (1994), and constitutes a bar on liability and a bar to the courts where suits against the U.S. may be filed. Sherwood, 312 U.S. at 588-91. The majority further stated that the Supreme Court has held that Congress waived sovereign immunity in Title VII to permit employees of the U.S. and its agencies to sue for employment discrimination. See Library of Congress v. Shaw, 478 U.S. 310, 319 (1986), abrogated by statute on other grounds. Specifically, Title VII provides that a federal employee who has exhausted specified administrative remedies "may file a civil action as provided in section 2000e-5 of this title" against the department head, agency, or unit. 42 U.S.C. § 2000e-16(c). The majority noted that, pursuant to § 2000e-5(f)(3), Title VII suits may be brought in "[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States." The majority observed that § 2000e-5(f)(3) does not require that Title VII suits be brought in federal court, but it does not authorize Title VII suits to be filed in state court either. Indeed, it is "completely silent" on that question. Yellow Freight, 494 U.S. at 825. Turning to Yellow Freight, the majority stated that that case involved an employee's Title VII claim against a private employer, which the majority viewed as the dispositive distinction from the instant case brought against the U.S. The Yellow Freight court construed § 2000e-5(f) to confer concurrent jurisdiction on federal and state courts, although Title VII's language and legislative history referred only to U.S. courts. Yellow Freight, 494 U.S. at 823-26. The Supreme Court explained that, "[u]nder our system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States." Id. at 823. It further stated that, if Congress seeks to give federal courts exclusive jurisdiction over a federal claim, it must "affirmatively divest state courts of their presumptively concurrent jurisdiction." Id. The majority opined that the fatal flaw in Bullock's argument was that state courts do not have presumptive jurisdiction to decide suits against the United States. The majority concluded that Title VII suits against private corporations, which lack sovereign immunity, may be justified by the presumption of concurrent state jurisdiction, but Title VII suits against the U.S. can be based only on an unequivocal statutory waiver of sovereign immunity. The majority thus declined to "infer" a waiver of sovereign immunity because the Supreme Court has directed that a sovereign immunity waiver "will not be implied." Lane v. Pena, 518 U.S. 187, 192 (1996). As a result, the majority agreed with the district court's holding that the state court lacked jurisdiction over Bullock's Title VII claim against DHS.

Federal Court Lacked Jurisdiction

The majority then concluded that the district court did not acquire jurisdiction from the state court that lacked jurisdiction by DHS's removal under 28 U.S.C. § 1442(a). Under the doctrine of "derivative" removal jurisdiction, if the state court lacks subject matter jurisdiction over a claim, the federal court to which the claim is removed acquires none even if it might have jurisdiction over a claim originally filed there. See Lambert Run Coal Co. v. Baltimore & Ohio Railroad Company, 258 U.S. 377, 382 (1922); Palmer v. City National Bank of W. Va., 498 F.3d 236, 244-46 (4th Cir. 2007). The majority noted that Congress abrogated the doctrine of derivative removal jurisdiction under the general removal statute, see 28 U.S.C. § 1441(d), but not as to § 1442.


Describing this as a case of first impression, Judge Gregory opined that Yellow Freight stated that § 2000e-5(f)(3) does not confer exclusive federal jurisdiction on federal courts or preclude the possibility of suing under Title VII in state court. The dissent reasoned that, since a private sector plaintiff may bring a Title VII claim in state court and § 2000e-5(f)(3) authorizes a federal employee to file a suit in the same manner as private sector employees, it follows that a federal litigant may file a Title VII claim in state court. The dissent opined that "[i]t cannot be that the same provision has one meaning for private sector employees and another for federal employees where Congress expressly waived sovereign immunity and provided that a federal employee may file a civil action in the same manner as private sector employees." See § 2000e-16(c).

Notes on Waiver of State Sovereign Immunity

In addition to having the power to waive the sovereign immunity of the U.S., Congress has the power to abrogate the state's sovereign immunity from suit in federal court under the Eleventh Amendment. For example, the Supreme Court recently heard oral argument in Coleman v. Maryland Court of Appeals, No. 10-CV-1016, on whether Congress abrogated states' immunity from suits under the Family and Medical Leave Act's "self-care" provision, 29 U.S.C. § 2612(a)(1)(D). For more information, see, e.g., Kevin Russell, Argument recap: State workers face uphill battle in seeking damages for violations of federal medical leave provisions, SCOTUSblog, Jan. 14, 2012. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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