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

. , ) ) ) Defendant s . ) )
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 t hereafter, o n August 24, 2016, the Smithsonian Institution removed the c ase 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, s ection 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 [ .]” T he 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

mer its 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 quo tation 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) P laintiff’s failure to exhaust administrative remedies unde r the Federal Tort Claims Act (“FTCA”) ( Id

. at 6

- 7)

. E ach

s uff ices 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 juris diction] 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)).
I n a removed case such as this, a federal court’s jurisdiction must “ ‘ mirror the jurisdic tion 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, 2394 (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 . (qu oting 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 j urisdiction 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 subjec t 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 wr ongful 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 s tate court for negligence , the Superior
Court never acquired jurisd iction 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

“ acquire s 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 law suit under the FTCA, a pl aintiff 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

co urt,’ 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) ).
T he Smithsonian has “no record” that Plaintiff “filed a claim for injury or damages under the FTCA[ .]” (Decl. of Je s sica Lauritzen, ECF No. 4

- 4). The attachments to the C omplaint include a completed claim form containing a printed P.O. Box address for claim s directed to the Smithsonian Institution

. But t he 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, th e court finds that it lacks “subject matter jurisdiction, or if not jurisdiction, the functional6 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 a nd subject to equitable tolling”).
III . CONCLUSION For the foregoing reasons, the Court grants D efendant’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