1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

WILBUR JOHNSON, )

)

Plaintiff, )

)

v. )

)

Civil Action No. 16-cv-1721 (TSC)

)

D.C. METRO TRANSIT AUTHORITY

et al.,

)

)

)

Defendants. )

)

MEMORANDUM OPINION

In a complaint filed on May 12, 2016, in the Superior Court of the District of 

Columbia, plaintiff Wilbur Johnson sued the Washington Metropolitan Area Transit 

Authority (“WMATA”) and the “the Smithsonian Archives Museum” for negligence. 

He alleges that on May 10, 2013, while a passenger on a city bus, he was injured when

the bus “was hit from the rear” by a “Smithsonian Archives” van. (Compl., ECF No. 1-

1). He demands $325,000 in damages. (Compl. at 1). 

On August 18, 2016, D.C. Superior Court dismissed the complaint against 

WMATA as time-barred. (See Order, ECF No. 4-2). Shortly thereafter, on August 24, 

2016, the Smithsonian Institution removed the case to this court pursuant to 28 U.S.C. 

§ 1442 (a)(1).

1

 (See Not. of Removal, ECF No. 1). The Smithsonian now moves to 

 1

 As applicable here, section 1442 of Title 28 of the United States Code authorizes the removal 

of a civil action “commenced in a State court . . . that is against . . . [t]he United States or any 

agency thereof [.]” The Smithsonian Institution is “an independent establishment of the United 

States, within the ‘federal agency’ definition.” Expeditions Unlimited Aquatic Enterprises, Inc. v. 
2

dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter 

jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be 

granted. (Mot. to Dismiss, ECF No. 4). Upon consideration of Defendant’s motion and 

Reply (ECF No. 8), and Plaintiff’s opposition (ECF Nos. 6, 7, 9), the court agrees that

it lacks subject matter jurisdiction. Accordingly, this case will be dismissed for the 

reasons explained more fully below. 

I. LEGAL STANDARD

“Federal district courts are courts of limited jurisdiction. They possess only that 

power authorized by Constitution and statute, which is not to be expanded by judicial 

decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal 

citations omitted). “Subject-matter jurisdiction can never be waived or forfeited” 

because it “goes to the foundation of the court’s power to resolve a case.” Gonzalez v. 

Thaler, –– U.S. ––, 132 S. Ct. 641, 648 (2012); Doe ex rel. Fein v. District of 

Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996). Consequently, before proceeding to the 

merits of a claim, a court must satisfy itself that it has subject matter jurisdiction over

the claim. See Brown v. Jewell, 134 F. Supp. 3d 170, 176 (D.D.C. 2015) (courts “‘have 

an independent obligation to determine whether subject-matter jurisdiction exists, even 

in the absence of a challenge from any party’”) (quoting Arbaugh v. Y & H Corp., 546 

U.S. 500, 514 (2006)). 

 

Smithsonian Inst., 566 F.2d 289, 296 (D.C. Cir. 1977) (citations and internal quotation marks 

omitted). 
3

II. ANALYSIS

Defendant offers two jurisdictional grounds for dismissal: (1) the doctrine of 

derivative jurisdiction (Def.’s Mem. at 5-6) and (2) Plaintiff’s failure to exhaust 

administrative remedies under the Federal Tort Claims Act (“FTCA”) (Id. at 6-7). Each

suffices to deprive this court of subject matter jurisdiction. 

A. Derivative Jurisdiction

Long ago, the Supreme Court observed that “[t]he jurisdiction of the federal 

court on removal is, in a limited sense, a derivative jurisdiction.” Lambert Run Coal 

Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922). Congress has since eliminated

derivative jurisdiction as a barrier to actions removed under 28 U.S.C. § 1441, see id. 

§ 1441(f), but § 1442, under which this case was removed, has no parallel provision. 

“Accordingly, Federal courts in this District, and throughout the country, have 

determined that the doctrine of derivative jurisdiction still applies to claims removed 

under Section 1442.” Merkulov v. United States Park Police, 75 F. Supp. 3d 126, 130 

(D.D.C. 2014) (citing cases); see Lopez v. Sentrillon Corp., 749 F.3d 347, 351 (5th Cir. 

2014) (joining the seventh and fourth circuit courts of appeals in concluding “that, ‘for 

whatever reasons [,] Congress intended to keep the [derivative jurisdiction] doctrine in 

place’ for removals other than those under § 1441”) (quoting Rodas v. Seidlin, 656 F.3d 

610, 619 (7th Cir. 2011) (alterations in original)). 

In a removed case such as this, a federal court’s jurisdiction must “ ‘mirror the 

jurisdiction that the state court had over the action prior to removal.’ ” Merkulov, 75 F. 

Supp. 3d at 129 (quoting Palmer v. City Nat. Bank of West Virginia, 498 F.3d 236, 239 
4

(4th Cir. 2007)). Consequently, “[i]f a State court lacks subject matter jurisdiction over 

a suit, the Federal court likewise lacks jurisdiction over the suit upon removal, even if 

the Federal court would have maintained jurisdiction ‘in a like suit originally brought 

there. . . .’” Id. (quoting Lambert Run Coal Co., 258 U.S. at 382). A threshold 

question for determining derivative jurisdiction “‘is whether, prior to removal, the 

Superior Court . . . had jurisdiction of the subject matter or of the parties.’” Cofield v. 

United States, 64 F. Supp. 3d 206, 214 (D.D.C. 2014) (quoting McKoy-Shields v. First 

Washington Realty, Inc., No. 11-cv-01419, 2012 WL 1076195, at *2 (D.D.C. Mar. 30, 

2012)). 

Defendant argues correctly that Plaintiff’s negligence action against the 

Smithsonian “is subject to the FTCA, which grants ‘exclusive jurisdiction’ to the 

United States district courts over civil actions brought against the United States for 

monetary damages.” (Def.’s Mem. at 6, ECF No. 4-1); see Lopez, 749 F.3d at 351 

(“The United States has waived its sovereign immunity to tort liability only under the 

FTCA[.]”) (citing 28 U.S.C. § 1346(b)(1)). Section 1346(b)(1) authorizes a lawsuit 

against the United States for money damages arising from “personal injury . . . caused 

by the negligent or wrongful act or omission of any employee of the Government while 

acting within the scope of his office or employment.” Because Congress has not 

consented to the United States being sued in state court for negligence, the Superior 

Court never acquired jurisdiction over either the subject matter or the Smithsonian as a 

United States agency. See Merkulov, 75 F. Supp. 3d at 130-31. As a result, this court 

“acquires none.” Lambert Run Coal Co., 258 U.S. at 382. 
5

B. Exhaustion of Administrative Remedies

Even if Plaintiff had initially filed the case here, the court still would be without 

jurisdiction. As indicated above, the FTCA is the exclusive basis for Plaintiff’s 

negligence claim against the Smithsonian. Before filing a lawsuit under the FTCA, a 

plaintiff must exhaust his administrative remedies by presenting the claim “first . . . to 

the appropriate Federal agency” and obtaining a final written denial. 28 U.S.C. 

§ 2675(a). If the agency fails to issue a final decision within six months after the claim 

is submitted, such inaction may “be deemed a final denial of the claim[.]” Id. The 

FTCA’s presentment requirement is “jurisdictional.” Simpkins v. District of Columbia 

Gov’t, 108 F. 3d 366, 371 (D.C. Cir. 2007); see Atherton v. United States, 193 F. Supp. 

3d 2, 4 (D.D.C. 2016) (noting that “since ‘compliance with § 2675(a)’s presentment 

requirement is a jurisdictional precondition to filing an FTCA suit in federal district 

court,’ subject-matter jurisdiction would not exist in an FTCA suit filed prematurely”) 

(quoting Mader v. United States, 654 F.3d 794, 805 (8th Cir. 2011)).

The Smithsonian has “no record” that Plaintiff “filed a claim for injury or 

damages under the FTCA[.]” (Decl. of Jessica Lauritzen, ECF No. 4-4). The 

attachments to the Complaint include a completed claim form containing a printed P.O. 

Box address for claims directed to the Smithsonian Institution. But the form is not 

dated and there is no indication that it was properly addressed and delivered. (See ECF 

No. 1-1, p. 3). Most importantly, nowhere in Plaintiff’s opposition has he addressed, 

let alone refuted, Defendant’s argument that his claim is unexhausted. Therefore, the 

court finds that it lacks “subject matter jurisdiction, or if not jurisdiction, the functional 
6

equivalent of it” to entertain the FTCA claim. Simpkins, 108 F. 3d at 371. And “in this 

posture, the court could no more rule in favor of the government than against it,” id., on

the non-jurisdictional ground that the claim is barred by the FTCA’s statute of 

limitations (Def.’s Mem. at 7). See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 

1638 (2015) (holding “that the FTCA’s time bars are nonjurisdictional and subject to 

equitable tolling”).

III. CONCLUSION

For the foregoing reasons, the Court grants Defendant’s motion to dismiss for 

want of subject matter jurisdiction. A separate order accompanies this memorandum 

opinion.

Date: March 9, 2017

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge