Labor & Employment – Civil Rights — Race Discrimination Claim – Federal Jurisdiction – State Court — Removal

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Bullock v. Napolitano (Lawyers Weekly No. 001-025-12, 13 pp.) (Niemeyer, J.) No. 10-1222, Jan. 23, 2012; USDC at Greenville, N.C. (Howard, J.) 4th Cir. Click here for full-text opinion.

Holding: The 4th Circuit upholds dismissal of this Title VII race discrimination suit filed by an African-American who was dismissed from the federal air marshal training program; the U.S. did not consent to be sued in North Carolina state court and removal of the suit to federal court, under the doctrine of derivative jurisdiction, did not cure that jurisdictional defect.

While at the federal law enforcement training program, plaintiff suffered injuries and was told he would have to complete the entire training program after he recovered. He claims that because other Caucasian trainees were allowed to graduate from the program despite having injuries that similarly limited their participation in training exercises, he was discriminated against on account of his race, in violation of Title VII. He sued Janet Napolitano, the Secretary of the Department of Homeland Security, and the U.S.

Congress waived sovereign immunity for Title VII suits brought by federal employees against the U.S., but it explicitly provided for jurisdiction only in federal courts. Nowhere in the language of the statutory authorization in 42 U.S.C. § 2000e-16(d) is there a waiver as to suits that otherwise might be brought in state courts.

Plaintiff argues that when Congress waived the U.S.’s sovereign immunity for Title VII actions, it waived the immunity from such actions in any court where they might be brought, and because Yellow Freight Sys. Inc. v. Donelly, 494 U.S. 820 (1990), construed Title VII to impliedly authorize Title VII suits in state courts, the U.S. therefore waived its sovereign immunity for Title VII cases filed in state courts.

The fallacy of plaintiff’s attempt to apply the logic of Yellow Freight to suits against the U.S. is that state courts do not have presumptive jurisdiction to decide suits against the U.S. While suits against private corporations, which do not have sovereign immunity, can be justified by the presumption of concurrent state jurisdiction, a suit against the U.S. can only rely on an unequivocal waiver contained in a statutory provision. A statute’s complete silence on the subject is insufficient. Even as plaintiff urges us to “infer” a waiver of sovereign immunity, the Supreme Court has instructed that a waiver of sovereign immunity will not be implied.

We affirm the district court’s conclusion that the North Carolina state court did not have subject matter jurisdiction over plaintiff’s Title VII suit against the Secretary of Homeland Security.

Because the state court did not have subject matter jurisdiction over this case, the district court did not acquire jurisdiction by reason of the case’s removal under 28 U.S.C. § 1442(a) from state to federal court.

Dismissal of the suit is affirmed.

Dissent

Gregory, J.: 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. I respectfully dissent.

I would reverse the district court’s dismissal for lack of subject matter jurisdiction.