1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________ _ _ ) LON RATLEY, ) ) Plaintiff, ) ) v. ) Civil Action No. 13

- CV

- 0 7 56(KBJ) ) UNITED STATES ) POSTAL SERVICE, ) ) Defendant. ) )

_ _______________________________ _ )
MEMORANDUM OPINION This federal case begins with a motion. The plaintiff has maintained from the

outset that he is owed $ 341.99 from the U.S. Postal Service for damage to a package
that he mailed

. T o pursue t his recovery, the plaintiff dutifully sought reimbursement directly f rom the Postal Service by invoking the agency’s insured mail policy in the
context of an administrative claim , and when that claim was denied, the p laintiff file d a

pro se complaint in the jurisdiction that is most logically equipped to handle such small
claims : the Small Claims and Conciliation Branch of the District of Columbia Superior
Court

. 1 A magistrate judge in the D.C. Superior C ourt dismissed the p laintiff’s action for improper service on April 20, 2013, whereupon the p laintiff asked to have his
terminated small claims action reinstated

. This simple motion

— one that ordinarily poses a high hurdle and is rarely successfully mounted

— wou ld likely have resulted in a

1 The instant action is, in fact, the second complaint that the plaintiff has filed in a small claims court r egarding this postal dispute. The plaintiff initially filed an action in the Small Claims Division of the Fairfax County General District Court in Virginia , but that case was dismissed for lack of jurisdiction. ( See ECF No. 2

- 1 at 4.)2 pro mpt resolution of the matter . Instead , for reasons that have yet to be adequately explained, the Postal Service decided to mak e a federal case out of this

. On May 23,
2013 , despite having a lready secured near
- final dismissal of this matter , the Postal
Service inexplicably snatched defeat from the jaws of victory by filing a notice of
removal pursuant to 28 U.S.C. § 1442(a)(1) , and thereby shifting the plaintiff’s m otion
for reinstatement of the complaint

— and presumably the entire case

— into federal court

. It was clear to this Court almost immediately that the Postal Service ’s removal
notice raised at least two concerns. First, the Court wondered whether a matter that a state court of competent (and certainly , in this case, much better) jurisdiction had already dismissed truly qualified as a “ live ” controversy that could be subje ct to this Court’s jurisdiction. See Am. Bar Ass’n v. F.T.C. , 636 F.3d 641, 64 7 (D.C. Cir. 2011) (“The mootness doctrine, deriving from Article III, limits federal courts to deciding actual, ongoing controversies.”) (citing Clarke v. United States , 915 F.2d 699, 700

- 01 ( D.C. Cir. 1990 ) )

. M ore fundamentally , the Court questioned the r ationality of a notice
of removal filed under these circumstances

— i.e., not by a potentially aggrieved party , but by the party that had already won in the jurisdiction that it now sought to flee

. Cf. Watson v. Philip Morris Cos. , 551 U.S. 142, 1 50

- 51 (2007) ( the purpose of removal
include s protecti on against state court proceedings that may reflect “local prejudice” or hostility towards the federal government) (collecting cases); Willingham v. Morgan , 395 U.S. 402, 405 (1969) (“O bviously, the removal p rovision was an attempt to protect federal officers [and agencies] from interference by hostile state courts.”)

. When the Court considered, too, the fact that the Postal Service’s response to the motion to
reinstate ( U.S. P.S. Resp., ECF No. 4 ) plainly states that the agency “takes no position”3 on the merits of the very motion that was the basis for the agency’s invocation of removal jurisdiction , 2 coupled with the fact that it would have cost plaintiff more in filing fees to bring this action in federal court in the first instance than he sought to recover as a result of the lawsuit, 3 the Court quickly reached the inescapable conclusion that a reevaluation of the agency’s removal determination, or at least so me explanation, was required. Consequently, o n June 4, 2013 , this Court issued an order to show cause , ostensibly to ask the Postal Service to explain “why the Court has jurisdiction over this matter” and “why a motion to reinstate a dismissed complaint is a live controversy for the purposes of removal , ” but primarily to provide the Postal Service with ample opportunity revisit its decision to remove to federal court a meager

- money claim that
the state court had a lready all

- but

- resolved in the agency’s favor. On July 10, 2013 , the Postal Service filed its response to the Court’s order show

to cause. (Show Cause Resp., ECF No. 6.) Without a hint of irony, the Postal Service
argues that “Defendant’s removal of Plaintiff’s motion to reinstate Plaintiff’s [dismissed] complaint was proper

. ” ( Id. at 1.) Without acknowledging in any way the oddity of a victorious state

- court defendant insisting that a plaintiff’s motion to reopen
the dismissed case be litigated in federal court at a cost far greater than the claimed benefit, t he Postal Service vig orously maintains that the agency properly removed the plaintiff’s reinstate ment request in this case for two reasons: first, because “the USPS, a federal agency, was improperly sued in state court , ” and , second, because the

2 The Court found it difficult to fathom how any defendant could “take no position” on a plaintiff’s motion to reopen a dismissed lawsuit. 3 The plaintiff’s Distr ict of Columbia Superior Court Small Claims and Conciliation Statement of Claim sought a recovery in the amount of $341.99. ( See ECF No. 5

- 1 at 27.) H is prior action in the Small Claims Division of the Fairfax County General District Court included addit ional shipping costs and claimed damages in the amount of $353.73. ( See ECF No. 2

- 1 at 4 .) By comparison , the filing fee for a civil action brought directly in the U.S. District Court for the District of Columbia is $350.00.4 plaintiff’s motion for reinsta tement “constitutes a removable ‘civil action’ under
28 U.S.C. § 1442(d)(1).” ( Id. ) In regard to the first point, the agency has provided no authority for the
contention that it had been “ improperly ” sued in small claims court, nor is there any record of the agency having made that argument to the state court judge. Nevertheless , even assuming that the Postal Service cannot be sued in small claims court as the
agency now suggests , the state court ’s d ismissal of the case at issue here surely cure d
that legal defect. One would think that the Postal Service w ould have be en content to
rest on that purportedly fitting end to the potentially misdirected action , but the agency
here has done precisely the opposite : i t eschewed the opportunity to proclaim its purported immunity and thereby put a stop to this matter once and for all, and instead singlehandedly resuscitated plaintiff’s near

- dead case by giving it new life in a fresh
federal forum through th e filing of a notice of removal

. The Postal Service’s second justification for removing this matter to federal

court rests solely on the statutory requirements for federal jurisdiction and removal

. ( See Show Cause Resp. at 2

. ) Without appreciating any distinction between the validity
of a removal notice and its rationality , the agency points squarely to the statutory
framework and mechanically recites the applicable removal analysis

. Under 28 U.S.C. § 1442( a)(1), it argues, a “civil action” brough t against any federal agency “may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending. ” ( I d

. (quoting 28 U.S.C. § 1442(a) )

. ) And
the plaintiff’s motion to reinstate his dismissed complaint qualifies as a “ civil action ” for the purpose of the removal statute, the agency asserts, because the “[p] laintiff’s5 motion is a ‘proceeding’ in which a ‘judicial order ’ ‘is sought. ’” ( I d. at 3 (quot ing 28 U.S.C. § 1442(d)(1 ) ). ) This may be true, but here it is also largely beside the point. Like the proverbial scientist who dutifully documents the trees but can’t quite envision
the forest , t he Postal Service firmly presses its contention that each of the statutory requisites for removal, construed broadly as appropriate, are fully satisfied here ( i d. at
2

- 3) without providing any clues as to a broader and more fundamental question: why
did the agency determine that removal to federal court (ev en if valid) was appropriately invoked under the circumstances presented in this case ? Nevertheless, t he C ourt is persuaded . The Court finds that it does have jurisdiction to hear this case on the basis of 28 U.S.C. § 1442 and 28 U.S.C. § 1446 , as the Postal Service argues . The Court also finds that the Postal Service has clearly and unequivocally chosen the federal court path in adjudicating this $ 341.99 claim, despite
the fact that leaving w ell enough alone would certainly have been the easier , less

- costly,
and more efficient option f or resolution of this dispute. U nfortunately for the agency,
there is more. This Court also finds that, i n the course of purposely electing to revive
this nearly

- extinguished state court action against it , the Postal Service has expressly
conceded the crucial question of whether or not the plaintiff’s case should , in fact, be reopened. This the agency has done by inserting in to its Response to the Motion to
Reinstate the unequivocal ( and quite remarkable ) statement th at the agency “takes no position” on the matter

. ( U.S.P.S. Resp. at 1. ) S ee Shankar v. ACS

- GSI , 258 Fed. Appx. 344, 345 (D.C. Cir. 2007) (holding that plaintiff conceded the merits of an issue when he “did not respond in any way to defendant’s argument” on the issue in his opposition before the district court) ; Nat’l Sec. Counselors v. C.I.A. , 898 F. Supp. 2d6 233, 268 (D.D.C. 2012) (“ [T] he Court may treat the plaintiff’s failure to oppose the
defendant’s

. . . arguments as a decision to concede those arguments.”) (internal citations omitted) ; see also LCvR 7(b) (when a party fails to oppose a motion, the Court may treat the motion as conceded). T o be sure, t his result may have been inevitable

— having relied on the pending motion to reinstate the dismissed complaint as the sole grounds for bringing what rema ined of this case in to federal court, the agency probably could not have also been heard to oppose that very mot ion . But the fact that the Postal
Service here disclaims any opposition to the reopening of the plaintiff’ s case against it
renders reinstateme nt of the dismissed action nearly a foregone conclusion. Accordingly , and remarkably without opposition, the plaintiff’s motion for
reinstatement of his complaint is granted and his case is re opened, now in federal court. By o peration of the Federal Rules of Civil Procedure , the onus is now on the agency to respond to the revived complaint , which a defendant ordinarily must do within 21 days of receipt of the complaint

— “through service or otherwise”

— or within 7 days after filing the notice of removal, whichever is longer. F ED

. R. C IV

. P. 81(c). As it happens,

o n May 24, 2013, t he Postal Service re quested an extension of time to file a responsive pleading as part of its Response to the Motion to Reinstate the Complaint

— time the agency said it needed t o “procure the complaint from the Clerk of the DC Superior Court[

. ]” (U.S.P.S. Re sp. at 2.) Six days later, all of the pleadings from the plaintiff’s D.C. Superior Court case were filed on the federal docket by virtue of the removal (Sup er . Ct. Docs., ECF No. 5 ) , which means that t he agency is currently in receipt of plaintiff’s complaint for the purpose of Rule 81(c)

. Nevertheless , as set forth in the accompanying order, t he Court will grant defendan t’s request for more time to submit7 its answer or ot herwise file a responsive pleading to the complaint

. With t his additio nal time, both parties will have an opportunity to assess fully their respective position s going forward in regard to this matter. A separate Order accompanies this
Memorandum Opinion

.

Date: July 1 8 , 2013 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge