UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1060

SONIA L. HENDY,

Plaintiff – Appellant,

v.

MARION N. BELLO,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Peter J. Messitte, Senior District 

Judge. (8:12-cv-02289-PJM)

Submitted: January 17, 2013 Decided: February 6, 2014

Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Timothy F. Maloney, Matthew M. Bryant, JOSEPH, GREENWALD & 

LAAKE, P.A., Greenbelt, Maryland, for Appellant. Rod J. 

Rosenstein, United States Attorney, Baltimore, Maryland, Neil R. 

White, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

This appeal arises out of an altercation between Postal 

Service employees Sonia Hendy and Marion Bello at the Westlake 

Post Office in Bethesda, Maryland, where they both worked. The 

fracas occurred on July 25, 2012, one day after Bello, Hendy’s 

direct supervisor, issued Hendy a “Notice of No-Time Served (7) 

Day Suspension.”

On July 26, 2012, in Maryland state court, Hendy filed a 

petition for a peace order restraining Bello from contacting 

Hendy or going to their mutual workplace. That court issued 

interim and temporary peace orders ex parte. The United States 

government, on behalf of Bello, removed the suit to federal 

court under 28 U.S.C. § 1442(a)(1), the federal officer removal 

statute, before the hearing for a final peace order. The 

District of Maryland then dismissed the action for lack of 

subject-matter jurisdiction under Federal Rule of Civil 

Procedure 12(b)(1) on the ground of sovereign immunity. Hendy 

appeals.

I.

On appeal, Bello argues that the case is no longer 

justiciable because it is moot, as Hendy can no longer obtain

relief for the July 25, 2012, incident under Maryland law. This 

argument, however, is based on a misreading of the Maryland Code 

of Courts & Judicial Procedure. Md. Code Ann., Cts. & Jud. 
3

Proc. § 3-1503(a) states that a petitioner may file an action 

for a peace order for any qualifying act that “occurred within 

30 days before the filing of the petition.” Hendy did just 

that. The statute also sets a timeframe for the final peace 

order hearing, but notes that the proceeding may be “continued 

for good cause.” Id. § 3-1505(b)(1)(ii). Here, the state court 

case was dismissed only because it was removed to federal court; 

if removal were improper, the statute does not bar Maryland 

courts from resuming jurisdiction and Hendy from obtaining a 

peace order. Because this case is based on Hendy’s original 

timely petition, it does not matter that Hendy is time-barred 

from filing for a new peace order based on the original July 25, 

2012, altercation. It is similarly immaterial that, had a peace 

order been granted in 2012, it would have already expired. See

id. § 3-1505(f); § 3-1506(a)(2). We therefore reject Bello’s 

assertion of mootness and turn to the merits.

II.

Hendy challenges the propriety of removal under 28 U.S.C. 

§ 1442(a)(1) and Mesa v. California, 489 U.S. 121 (1989). 

Section 1442(a)(1) allows federal officers or those “acting 

under” any “agency” or “officer” of the United States to remove 

to federal court suits brought against them in state court, when 

they were acting “in an official or individual capacity, for or 

relating to any act under color of such office.” We find that 
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these requirements have been met. As a postal worker, Bello

acted under an “officer” of the United States, Mesa, 489 U.S. at 

125, and the dispute related to a federal workplace disciplinary 

action, which is “closely connected with[] the performance of 

[her] official functions,” Jefferson Cnty. v. Acker, 527 U.S. 

423, 447 (1999). We also find that Mesa’s colorable federal 

defense requirement was met at the time the district court 

dismissed the action. See North Carolina v. Cisneros, 947 F.2d 

1135, 1139 (4th Cir. 1991).

III.

Next, Hendy challenges the district court’s dismissal for 

lack of subject-matter jurisdiction. We review de novo a 

dismissal under Fed. R. Civ. P. 12(b)(1). Vulcan Materials Co. 

v. Massiah, 645 F.3d 249, 261 (4th Cir. 2011).

The government of the United States enjoys sovereign 

immunity from suit unless it expressly waives such immunity. 

United States v. McLemore, 45 U.S. 286, 288 (1846). A suit 

against a government officer in her official capacity is really 

“a suit against the official’s office,” and so officers acting 

within their authority generally also receive sovereign 

immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 

(1989); see also Larson v. Domestic & Foreign Commerce Corp., 

337 U.S. 682, 687 (1949). Therefore, we must ask whether 

Congress has waived sovereign immunity on these facts. There 
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are two possible sources of waiver: The Federal Tort Claims Act 

(“FTCA”), 62 Stat. 982 (1948), codified at 28 U.S.C. §§ 1346(b), 

2671-2680, and the Postal Reorganization Act of 1970 (“PRA”), 

Pub. L. 91-375, 84 Stat. 722, codified at 39 U.S.C. § 101 et 

seq. Neither is applicable here.

The FTCA waives sovereign immunity for tortious acts of 

federal employees working in the scope of their federal 

employment, including post office employees. 28 U.S.C. 

§ 1346(b)(1); 39 U.S.C. § 409(c). However, the FTCA by its 

plain terms applies only to suits seeking money damages, and 

Hendy’s does not. 28 U.S.C. § 1346(b).

On the other hand, the PRA authorizes the Postal Service 

“to sue and be sued in its official name.” See 39 U.S.C. 

§ 401(1). Although “sue and be sued” clauses are generally 

liberally construed, they are not absolute waivers of sovereign 

immunity. See Loeffler v. Frank, 486 U.S. 549, 554–55 (1988) 

(quoting Fed. Housing Administration v. Burr, 309 U.S. 242, 245 

(1940)). “Sue and be sued” clauses do not waive sovereign 

immunity in several circumstances: (1) for types of suits that 

are “not consistent with the statutory or constitutional 

scheme”; (2) when “necessary to avoid grave interference with 

the performance of a governmental function”; or (3) for other 

reasons that demonstrate congressional intent to apply the “sue 

and be sued” clause narrowly. Id. The first two exceptions 
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apply here: Hendy seeks a state-law injunction that would 

prohibit a supervisor at the Westlake Post Office from coming to 

her federal workplace. It is inconsistent with the principle of 

federal supremacy to allow such interference with the 

performance of a federal employee’s duties. Moreover, in 

prohibiting a federal employee from entering her federal

workplace, waiving sovereign immunity would disturb the federal 

agency’s internal functions. This could not have been 

Congress’s intent.

Finally, we also note that, even if we construed the “sue 

and be sued” clause to waive immunity for this type of claim, 

“[a]n absence of immunity does not result in liability if the 

substantive law in question is not intended to reach the federal 

entity.” U.S. Postal Service v. Flamingo Indus., 540 U.S. 736, 

744 (2004). By its plain terms, the Maryland statutory scheme 

does not apply to the post office--or any other governmental or 

business entity. Md. Code Ann., Cts. & Jud. Proc. § 3-1501(h)

(noting that a peace order may be filed against an “individual” 

who committed an enumerated act).

IV.

We therefore affirm the district court’s dismissal of this 

suit for lack of subject-matter jurisdiction on sovereignimmunity grounds.

AFFIRMED