Dismissal of Action After Removal From State Court

Willie D. Bullock v. Janet Napolitano, Sec’y, U.S. Dep’t of Homeland Security, No. 10-1222 (4 th Cir. Jan. 23, 2012).

On January 23, 2012, the Fourth Circuit (in a rare published opinion) affirmed dismissal of a Title VII claim for lack of jurisdiction because it had been first filed in state court and then removed to federal court.

From the majority (Judge Paul Niemeyer writing for himself and Judge George Agee):

"After Willie Bullock filed this racial discrimination action under Title VII of the Civil Rights Act of 1964 in a North Carolina state court, naming as the defendant the Secretary of the U.S. Department of Homeland Security, the Secretary removed the case to federal court under 28 U.S.C. § 1442(a). She then filed a motion to dismiss, claiming that she did not waive sovereign immunity so as to be subject to suit in state court and, therefore, the state court did not have subject matter jurisdiction. She also claimed that because the removal process itself did not create jurisdiction in federal court, the federal court likewise did not have subject-matter jurisdiction under the doctrine of derivative jurisdiction. The district court agreed and granted the Secretary's motion to dismiss."

"We conclude that because the United States and the Secretary of Homeland Security did not consent to be sued in a North Carolina state court under Title VII, the state court lacked subject-matter jurisdiction. Inasmuch as removal to federal court, under the doctrine of derivative jurisdiction, did not cure that jurisdictional defect, we affirm the district court's order."

From Judge Roger Gregory's dissent: "Under unanimous Supreme Court precedent, a plaintiff may file a suit alleging a violation of Title VII in either state or federal court. The remaining limitation that exists where the defendant is a federal employer--sovereign immunity--was expressly waived in Title VII actions via § 2000-e16. Today's majority incorrectly extends the requirement that Congress expressly waive sovereign immunity to also require Congress to likewise expressly waive exclusive federal jurisdiction over Title VII actions, a jurisdiction that is neither exclusive nor presumed under our system of dual sovereignty and binding Supreme Court precedent. For these reasons, I respectfully dissent."

-- submitted by Thomas J. Gagliardo

Newsletter Volume: 
Newsletter - January/February 2012