United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon United States District Judge
before the court is the United States' motion to dismiss
this case in its entirety. As discussed in more detail below,
the court concludes that it lacks jurisdiction over this
action. Thus, the court will grant the motion and dismiss the
lawsuit without prejudice.
Stephanie Jo Smith, who is proceeding pro se, is an employee
of the United States Postal Service. She filed suit in state
court alleging that her supervisor, Gwendolyn R. Hammer, was
hostile and violent toward her on August 13, 2018, while they
were both at work. In particular, she filed a petition for
protective order in which she alleged that her supervisor
“shoved up against my work case[, ] shook her finger in
my face, [and] told me to shut up/shut my mouth.”
(State Court Petition, Dkt. No. 9-1, at 3.) Smith also filed
a more detailed affidavit in support of her petition. (Dkt.
No. 9-1, at 5.) The general district court of Rockingham/
Harrisonburg issued a preliminary protective order until a
hearing could be held on the matter. (Dkt. No. 9-1, at 1-2.)
Before that hearing occurred, however, the United States
removed the action to this court.
United States subsequently filed a motion to substitute the
United States for defendant Gwendolyn Hammer, providing a
certification consistent with the Westfall Act, stating that
the incident giving rise to suit occurred within the scope of
Hammer's employment as a USPS supervisor. (Dkt. No. 7);
28 U.S.C. § 2679. The court granted that unopposed
motion and directed the clerk to restyle the case as
Smith v. United States. (Dkt. No. 10.)
supporting memorandum (Dkt. No. 9), the United States sets
forth ample legal authority discussing the well-established
principles of sovereign immunity and derivative jurisdiction,
both of which lead the court to conclude that it lacks
jurisdiction over this suit.
of all, as the United States notes, the doctrine of
derivative jurisdiction applies when the United States
removes a case, as here, under 28 U.S.C. § 1442.
Bullock v. Napolitano, 666 F.3d 281, 286 (4th Cir.
2012); Palmer v. City Nat'l Bank of W.Va., 298
F.3d 236, 246 (4th Cir. 2007). Under that doctrine, the
federal court only acquires the jurisdiction possessed by the
state court prior to removal. Bullock, 666 F.3d at
286. Conversely, “[i]f the state court lacks
jurisdiction of the subject-matter or of the parties, the
federal court acquires none, although it might in a like suit
originally brought there have had jurisdiction.”
principle of sovereign immunity shields the federal
government and its agencies from suit, absent a waiver from
the government. Welch v. United States, 409 F.3d
646, 651 (4th Cir. 2005). The government has waived its
sovereign immunity for claims, like Smith's,
under the Federal Tort Claims Act, 28 U.S.C. §§
2671 et seq., but that waiver is conditioned on a
plaintiff's first exhausting her administrative remedies.
Specifically, the FTCA requires a claimant to present the
claim to the appropriate administrative agency for
determination prior to commencing an action in court. 28
U.S.C. § 2675(a). Until the administrative remedies have
been exhausted, a claimant may not file suit. McNeil v.
United States, 508 U.S. 106, 113 (1993).
filing in court, then, Smith was required to present her
claim by filing with the United States Postal Service
“an executed Standard Form 95 or other written
notification of the incident, accompanied by a claim for
money damages in a sum certain for injury to or loss of
property, personal injury, or death.” 28 C.F.R. §
14.2(a). The United States asserts that Smith failed to file
any administrative claim with the USPS prior to seeking legal
action against Hammer.
does not refute this assertion. Instead, in her response to
the motion to dismiss, Smith merely reiterates the facts of
her claim and the harms that she alleges have occurred. She
does not address the arguments regarding exhaustion or
jurisdiction. Critically, she does not even allege
that she filed an administrative claim, let alone provide any
proof that she has done so. (See generally Resp.,
Dkt. No. 14.) The court thus concludes that Smith has failed
to exhaust her remedies that that her claim is premature.
this court does not have jurisdiction over Smith's
claims. See McNeil, 508 U.S. at 112; see also
Messino v. McBride, 174 F.Supp.2d 397, 399 (D. Md. 2001)
(dismissing FTCA claim for failure to exhaust administrative
remedies, where plaintiff filed in state court against
federal employee, and the United States removed to federal
court and was later substituted as defendant);
Brittingham v. United States, 972 F.Supp. 1014, 1018
(E.D. Va. 1997) (dismissing claim initially brought in state
court against federal supervisor for assault, after
substituting United States for defendant, because plaintiff
failed to exhaust administrative remedies). Likewise, the
state court lacked jurisdiction, and thus dismissal-rather
than remand-is the appropriate remedy. Lovern v.
Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (“[A]
federal court is obliged to dismiss a case whenever it
appears the court lacks subject matter jurisdiction . . .
foregoing reasons, the court will grant the United
States' motion to dismiss (Dkt. No. 8) and dismiss this