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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DONALD L. COBB,

Plaintiff

v.

UNITED STATES OF AMERICA,

Defendant.

Civil Action No. 21-2419 (CKK)

AMENDED MEMORANDUM OPINION

(June 7, 2022)

Plaintiff, proceeding pro se, filed a complaint in the Superior Court of the District of 

Columbia against Dineen Baker (“Baker”), an employee of the United States Attorney’s Office 

for the District of Columbia. Upon certifying that the alleged misconduct fell within the scope of 

Baker’s employment, Defendant removed the complaint to this Court pursuant to 28 U.S.C. § 

2679(d)(2). Pending before the Court is Defendant’s [5] Motion to Dismiss for lack of 

jurisdiction and for insufficient service of process. Upon consideration of the pleadings,1 the 

relevant legal authorities, and the entire record, the Court shall GRANT Defendant’s [5] Motion. 

This Amended Memorandum Opinion vacates and replaces the [12] Memorandum Opinion 

entered May 26, 2022. 

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 This Memorandum Opinion focuses on the following documents: 

• Plaintiff’s Statement of Claim, ECF No. 1-1 at 2 (“Compl.”); 

• Defendant’s Motion to Dismiss, ECF No. 5 (“Opp.”);

• Plaintiff’s Motion to Invalidate Channing D. Phillips [sic] Motion to Dismiss, ECF No. 7

(“Opp.”); and 

• Defendant’s Reply in Support of Defendant’s Motion to Dismiss, ECF No. 9 (“Repl.”).

Motion for Reconsideration, ECF No. 29 (“Mot.”).

In an exercise of its discretion, the Court finds that holding oral argument in this action 

would not be of assistance in rendering a decision. See LCvR 7(f). 
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I. BACKGROUND

In his one-page “Statement of Claim,” Plaintiff summarily alleges that between 

November 3, 2020 and May 29, 2021, Baker destroyed his “notebook in which he had 

documented . . . his reasons for why he believed the D.C. Metropolitan Police Department . . . 

had involved itself in a coverup.” Compl. Plaintiff demands $8.45 in damages for “destruction 

of his property.” Id. He does not dispute that the claim is “founded on tort based on the alleged 

destruction of [his] notebook, which he provided to the U.S. Attorney’s Office for the purpose of 

investigation.” Not. of Removal ¶ 3. 

On September 27, 2021, Plaintiff moved to remand the case to Superior Court, asserting 

that Baker had “acted outside her proper role when she willfully destroyed” his property. ECF 

No. 3 at 1. The Court denied that motion on the grounds that Plaintiff had alleged no facts to 

rebut the presumption accorded to Defendant’s Westfall Declaration. ECF No. 6. Plaintiff then 

timely filed his opposition to the instant motion. Plaintiff also filed a surreply to Defendant’s 

reply in support of its motion to dismiss, for which the Court granted leave to file nunc pro tunc

in its [12] Memorandum Opinion. 

II. LEGAL STANDARD

A. Rule 12(b)(1)

To survive a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of 

establishing that the court has subject matter jurisdiction over its claim. See Moms Against 

Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is 

jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced 

in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of 

disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 
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2003) (citations omitted). “Although a court must accept as true all factual allegations contained 

in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual 

allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in 

resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 

503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted).

B. Rule 12(b)(5)

“In the absence of service of process (or waiver of service by the defendant), a court ordinarily 

may not exercise power over a party the complaint names as a defendant.” Murphy Bros. v. 

Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Pursuant to Federal Rule of Civil 

Procedure 12(b)(5), “if the plaintiff does not effect service on a defendant, then the defendant

may move to dismiss the complaint” without prejudice. Hilska v. Jones, 217 F.R.D. 16, 20 

(D.D.C. 2003). The plaintiff “bears the burden of proving that she has effected proper service.” 

Jouanny v. Embassy of France, 220 F. Supp. 3d 34, 37-38 (D.D.C. 2016). Insufficient service is 

a “fatal jurisdictional defect” and grounds for dismissal. Id. at 38. 

III. DISCUSSION

A. Derivative Jurisdiction 

Defendant first argues that the Court must dismiss the case for lack of derivative 

jurisdiction. The Court recently addressed, in summary terms, such an argument in Charles v. 

United States, No. 21-0864 (CKK), 2022 WL 558181 (D.D.C. Feb. 24, 2022) and concluded that 

derivative jurisdiction is a “non-issue” where 28 U.S.C. § 2679(d)(2) independently confers 

removal jurisdiction upon a complaint removed to federal court through a Westfall declaration. 

Id. at *3. In support of its position, Defendant cites a variety of cases from this jurisdiction.

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 All 

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 Day v. Azar, 308 F. Supp. 3d 140 (D.D.C. 2018); Johnson v. D.C. Metro Transit Auth., 239 F. 

Supp. 3d 293 (D.D.C. 2017); Merkulov v. U.S. Park Police, 75 F. Supp. 3d 126 (D.D.C. 2014); 
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of these cases were removed solely pursuant to 28 U.S.C. § 1442; none involved a Westfall 

declaration. But see Cofield, 64 F. Supp. 3d at 214 (in action removed solely pursuant to section 

1442, surmising that removal jurisdiction would be lacking over a removed tort claim pursuant to 

28 U.S.C. § 2679(a)). Other than Cofield’s short dictum, it appears on the Court’s review that no 

court of this jurisdiction has ever endorsed Defendant’s view. Therefore, and upon further 

consideration of the legal authorities, the Court reaffirms its holding in Charles.

Congress has created a number of statutes governing removal of certain cases from state 

court to federal court. Pursuant to 28 U.S.C. § 1444, for example, United States may remove 

foreclosure actions against it from state court to federal court. Pursuant to 28 U.S.C. § 1442, 

which Defendant cites for jurisdiction in its Notice of Removal, United States agencies and 

officers may remove claims against them in state court to federal court. Merkulov v. U.S. Park 

Police, 75 F. Supp. 3d 126, 129 (D.D.C. 2014) (BAH). The Supreme Court has, over the years, 

either held or noted that “if the state court lacks jurisdiction over the subject matter of the parties, 

the federal court acquires none upon removal [under section 1442], even though the federal court 

would have had jurisdiction if the suit had originated there.” See Arizona v. Manypenny, 451 

U.S. 232, 242 n.17 (1981) (collecting cases). The federal courts have long applied this 

requirement as the doctrine of “derivative jurisdiction,” notwithstanding plenty of criticism by 

“courts and commentators.” Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314, 1321 (11th Cir. 

2021). 

As this Court has previously explained in section 1442 cases, “the justification for this 

derivative jurisdiction doctrine is ‘hardly obvious,’ and the doctrine has faced considerable 

scrutiny.” E.g., Robinson v. United States Dep’t of Health & Hum. Res., No. 21-1644, 2021 WL 

Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014); McKay-Shields v. First Wash. 

Realty, Inc., 2012 WL 10765195 (D.D.C. Mar. 30, 2012). 
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4798100, at *3 (D.D.C. Oct. 14, 2021) (CKK) (quoting Ricci v. Salzman, 976 F.3d 768, 773 (7th

Cir. 2020) (cleaned up)). The doctrine often creates “something of a paradox,” in which a 

federal defendant immediately moves to dismiss a case that it had just removed for lack of 

removal jurisdiction. James v. U.S. Postal Service, 484 F. Supp. 3d 1, 4-5 (D.D.C. 2020) (CKK). 

This “circuitous barrier” raises especially grave concerns for pro se litigants “who may not be 

well-versed in the technicalities of civil procedure or federal jurisdiction.” Robinson, 2021 WL 

4798100, at *3; see also 14C Wright & Miller, Federal Prac. & Proc. § 3722 (4th ed. 2020) 

(collecting cases and characterizing criticism like this court’s as “deserved”). Nevertheless, 

pursuant to binding precedent, the Court has faithfully applied the derivative jurisdiction doctrine 

in section 1442 cases. E.g., Robinson, 2021 WL 4798100, at *4; James, 484 F. Supp. 3d at 5. 

This case, however, is different. In this case, Defendant did not just remove the action

pursuant to 28 U.S.C. § 1442. Defendant also removed it pursuant to 28 U.S.C. § 2679(d)(2). 

The Westfall Act, 28 U.S.C. § 2679, empowers the federal government to remove a case from 

state court against a federal employee in their individual capacity upon the filing of a 

certification by the Attorney General or his designee that the employee was acting in the course 

of his employment at the time of the alleged tort. Id. § 2679(e)-(d). The Act further provides 

that

[u]pon [such] certification . . . any civil action or proceeding commenced upon such 

claim in a State court shall be removed without bond at any time before trial by the 

Attorney General to the district court of the United States for the district and division 

embracing the place in which the action or proceeding is pending.

Id. § 2679(d)(2). The Supreme Court has instructed that this statutory provision is jurisdictional; 

a notice of removal accompanied by a Westfall certification automatically confers removal 

jurisdiction on the federal court to which the case is removed. See Osborn v. Haley, 549 U.S.

225, 231 (2007) (“On the jurisdictional issues, we hold that the Attorney General’s certification 
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is conclusive for the purposes of removal.”); see also id. at 253-54 (Souter, J., concurring in part 

and dissenting in part) (“In sanctioning appellate review notwithstanding section 1447(d), the 

Court relies on its determination that Congress, through section 2679(d)(2), has prohibited 

remand in cases like this one, in order to give effect to the conclusive character of the Attorney 

General’s certification on the issue of removal jurisdiction.” (emphasis added)). 

In fact, removal jurisdiction arising from a Westfall certification is so durable that it may 

never be lost. As Defendant concedes, the Court held in Osborn that, as a matter of statutory 

construction, a district court must retain removal jurisdiction even upon a finding that the 

individual defendant was not acting in the course of their employment for the United States and 

“may not remand the suit to the state court.” Id. at 231; Steele v. Meyer, 964 F. Supp. 2d 9, 14 

(D.D.C. 2013) (Howell, C.J.) (denying motion to remand after finding individual defendants 

were not acting within course of employment at time of alleged tort). The Court cannot 

reconcile Defendant’s position that section 2679(d)(2) also requires derivative jurisdiction to 

exercise removal jurisdiction with this binding precedent.

Nor can Defendant’s position be squared with the statutory text itself. Section 2679 is 

applicable only where a plaintiff has sued a government employee for tortious conduct. All such 

claims are covered by the Federal Tort Claims Act which, pursuant to 28 U.S.C. § 1346, only

federal courts have jurisdiction to hear. Charles, 2022 WL 558181, at *3. As such, if the federal 

district courts were required to have derivative jurisdiction over claims removed pursuant to 

section 2679(d)(2), they would never have removal jurisdiction over such claims. Id.; accord Da 

Silva v. Temple Univ. Hosp., Inc., 506 F. Supp. 3d 318, 328 (E.D. Pa. 2020); Stein v. United 

States, 2021 WL 4895338, at *4 (S.D. Ill. Oct. 20, 2021). Such a reading would not just “‘render 

[section 2679] nonsensical,’” Da Silva, 506 F. Supp. 3d at 324 (quoting Nye v. Hilo Med. Ctr., 
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2020 WL 931926, at *4 (D. Haw. Mar. 11, 2020)), it would make the whole of section 2679 

entirely nugatory. Reading a statute to nullify its practical import would violate the “‘cardinal 

principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, 

if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’” 

See TRW Inc. v. Andrews, 54 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 

(2001)). Moreover, a necessarily self-defeating removal provision would be an “‘absurd and 

unjust result which Congress could not have intended.’” See Clinton v. City of New York, 524 

U.S. 417, 429 (1998) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982)) 

(discussing absurdity doctrine in statutory construction). 

There are additional consequences to Defendant’s reading as well. Because, under 

Defendant’s view, “no tort suit begun in state court could survive removal” upon a Westfall 

certification, “a plaintiff who is unsure of whether a defendant is a federal employee [or whether 

they were an employee acting within the scope of their employment] . . . must file two lawsuits–

–one in state court in case they were not, and one in federal court in case they were.” Stein, 2021 

WL 4895338, at *5. As this Court has noted in the context of cases involving removal only 

pursuant to section 1442, this problem is only compounded for pro se litigants. Robinson, 2021 

WL 4798100, at *3. Accordingly, the Court holds that it requires no derivative jurisdiction to 

exercise removal jurisdiction where a claim is removed pursuant to section 2679(d)(2).

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B. Service of Process

3 In much older cases, two federal Courts of Appeals have applied slightly different reasoning to 

also hold that derivative jurisdiction is inapplicable to cases removed pursuant to a Westfall 

certifications. These courts hold that state courts do have jurisdiction over such cases unless and 

until the United States files its Westfall declaration. McGowan v. Williams, 623 F.2d 1239, 1242 

(7th Cir. 1980); Thompson v. Wheeler, 898 F.2d 406, 409 n.2 (3d Cir. 1990). These cases have 

likely since been abrogated by the Supreme Court’s much broader holding in Osborn and, in any 

event, are not binding upon this Court. 
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The Court lacks jurisdiction over a defendant unless the plaintiff effects proper service. 

Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012). To show valid service of process, the 

plaintiff “‘must demonstrate that the procedure [he] employed satisfied the requirements of the 

relevant portions of Rule 4 [of the Federal Rules of Civil Procedure] and any other applicable 

provision of law.’” Roland v. Branch Banking & Trust Corp., 149 F. Supp. 3d 61, 64 (D.D.C. 

2015). If no or improper service is effected prior to removal, a plaintiff must effect proper 

service within 90 days of removal. See 28 U.S.C. § 1448; Fed. R. Civ. P. 4(m). Here, pursuant 

to D.C. Super. Ct. R. Civ. P. 4(i) and Fed. R. Civ. P. 4(i), Plaintiff was required to serve the 

United States Attorney and the Attorney General via registered or certified mail, and he served 

neither. Therefore, the Court must dismiss Plaintiff’s complaint for insufficient service. Having 

done so, the Court would be inclined to end its discussion here. However, given Plaintiff’s pro 

se status, the Court shall exercise its discretion to discuss the remaining issues with Plaintiff’s 

case. 

C. FTCA Jurisdiction

Because Plaintiff has not carried his burden to show that Baker was not acting in the 

course of her employment when she allegedly destroyed Plaintiff’s notebook, the Court lacks 

subject matter jurisdiction over Plaintiff’s claim for want of administrative exhaustion. 

1. Scope of Employment

As previously discussed above, the Westfall Act, 28 U.S.C. § 2679, governs when a 

federal official is immunized from state tort liability for that official’s purportedly tortious act. 

In relevant part, the Act provides: 

Upon certification by the Attorney General that the defendant was acting within the scope 

of his office or employment at the time of the incident out of which the claim arose, any 

civil action or proceeding commenced upon such a claim in a United States district court 

shall be deemed an action against the United States under the provisions of this title and 
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all references thereto, and the United States shall be substituted as the party defendant. 

28 U.S.C. § 2679(d)(1). Although the Attorney General’s declaration that an official was acting 

in the course of their employment is not “conclusive,” it does “constitute prima facie evidence 

that the employee was [in fact] acting within the scope of [their] employment.” Council of Am. 

Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). As such, the Act establishes 

an evidentiary question that a defendant must contest by “coming forward with specific facts 

rebutting the certification.” See Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003). 

Although sometimes an evidentiary hearing is necessary to determine whether the official was 

acting within the scope of their employment, usually it is more appropriate for the Court to 

decide the question on the papers. See Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009).

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In either case, the question is governed by the law of respondeat superior in the state in 

which the alleged tort occurred––here, the District of Columbia. Wilson v. Libby, 535 F.3d 697, 

711 (D.C. Cir. 2008). The District of Columbia follows the Second Restatement of Agency in 

delineating scope of employment: 

(1) Conduct of a servant is within the scope of employment if, but only if: 

(a) it is of the kind he is employed to perform; 

(b) it occurs substantially within the authorized time and space limits; 

(c) it is actuated, at least in part, by a purpose to serve the master; and 

(d) if force is intentionally used by the servant against the other, the use of force is not 

unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind 

from that authorized, far beyond the authorized time or space limits, or too little actuated 

by a purpose to serve the master.

4

 Accord Singleton v. United States, 277 F.3d 864, 871 (6th Cir. 2002); Davric Maine Corp. v. 

USPS, 238 F.3d 58, 67 (1st Cir. 2001).
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Schechter v. Merchants Home Delivery, Inc., 892 A.2d 415, 427-28 (D.C. 2006). “Although 

scope of employment is generally a question for the jury, it ‘becomes a question of law for the 

court, however, if there is not sufficient evidence from which a reasonable juror could conclude 

that the action was within the scope of employment.’” District of Columbia v. Bamidele, 103 

A.3d 516, 525 (D.C. 2014) (Fisher, J.) (quoting Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 

1986)). “‘However, if the employee acts in part to serve his employer’s interest, the employer 

will be held liable for the intentional torts of his employee even if prompted partially by personal 

motives, such as revenge.’” Id. (quoting Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C. 

2000).

Plaintiff offers just one conclusory statement in his attempt to contravene Defendant’s 

Westfall certification: “Dineen Baker acted outside her proper role when she willfully destroyed 

[Plaintiff’s] [] property.” Pl.’s Mot. to Remand, ECF No. 3. This “bare assertion” that Baker 

was not acting in the scope of her employment “is not sufficient to defeat the Attorney General’s 

certification” as a matter of law. Steele, 964 F. Supp. 2d at 15. Moreover, even were Baker’s 

behavior intentional, or even criminal, “whether an employee’s activity was criminal is 

probative, but not determinative, of whether their conduct was within the scope of their 

employment.” Charles, 2022 WL 1045293, at *5; see also Harbury v. Hayden, 522 F.3d 413, 

422 (D.C. Cir. 2008) (“seriously criminal conduct can still fall within the scope of a defendant’s 

employment under D.C. law”); Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981) 

(laundromat employee acted within scope of employment in shooting customer during dispute 

over removing clothes from washing machine). As such, Plaintiff has not alleged sufficient facts 

to rebut Defendant’s Westfall certification, and the Court concludes that the United States is the 

proper defendant in action. 
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2. Exhaustion 

Having concluded that the United States is the proper defendant, the Court further finds 

that it lacks jurisdiction over Plaintiff’s claim because he has failed to exhaust his administrative 

remedies. Pursuant to 28 U.S.C. § 2675(a), a plaintiff must “first present[] the[ir] claim to the 

appropriate Federal agency and [their] claim [must] have been finally denied by the agency”

before filing suit. This requirement is jurisdictional. Simkins v. District of Columbia, 108 F.3d 

366, 371 (D.C. Cir. 1997). As it is undisputed that Plaintiff has not filed a claim with the United 

States Department of Justice, this exhaustion doctrine bars the Court from exercising subject 

matter jurisdiction. 

IV. CONCLUSION

For the foregoing reasons, the Court has concluded that Plaintiff’s Defendant’s [5] 

Motion to Dismiss is GRANTED. An appropriate order accompanies this memorandum 

opinion. 

Dated: June 7, 2022

 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge