1 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 s e , filed a complaint in the Superior Court of the District of Columbia a gainst Dine en Baker ( “ B a ker ” ) , an employee of the United States Attorney ’ s Office for the District of Columbia. Upon certifying that the allege d misconduct fell within the scope of
Ba ker ’ s employment, Defendant remove d the complaint to this Court pursuant to 28 U.S.C. § 2679(d)(2). Pending befor e the Court is Defendant ’ s [5] Motion to D ismiss for lack of jurisdiction and for insufficient service of process . U pon consideration of the pleadings, 1 the relevant legal authoriti es, a nd the entire record, the Court shall GRANT Defendant ’ s [5] Motion

. This Amended Memorandum Opinion vacates and replaces the [12] M emorand um Opin ion entered May 26, 2022.

1 This Memorandum Opinion focuses on the following documents:
• Plaintiff’s Statement of C laim , ECF No. 1

- 1 at 2 (“Compl.”);
• Defendant ’ s Motion to Di smiss, 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 Dismis s, EC F 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).2 I. BACKGROUND In his one

- page “ Statement of Claim, ” Plaintiff summarily alleges that between November 3, 202 0 an d May 29, 2021, Baker destroyed his “ notebook in which he had documente d . . . his reasons for why he believed the D.C. Metrop olitan Police Department . . . had inv olved i tself in a coverup. ” Compl. Plaintiff demands $8.45 in damages for “ destruction

o f 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 th e case to Superior Court, asserting that Baker h ad “ acted outside her proper role when she will fully 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 Defen dant ’ s Westfall Decl aration. ECF No. 6. Plaintiff the n timely filed his opposition to the instant motion . Plaintiff also filed a surre ply 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] M emoran dum Opinion.
II. L EGAL STAN DARD
A. Rule 12( b)(1)
T o 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 Undergr ound Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir.3 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 allegatio ns 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 pro cess (or waiver of service by the defendant), a court ordinarily may not exercise power over a par ty the complaint names as a defendant. ” Murphy Bros. v. Michetti Pipe Stringing, Inc. , 52 6 U.S. 344, 350 (1999). Pursua nt to Federal Rule of Civil
Pro cedure 12(b)(5), “ if the plaintiff does not effect service on a defendant , then the defendant may move to dismiss the complaint ” without prej udice. Hilska v. Jones , 217 F.R.D. 16, 20 (D.D. C . 2003). The plaintiff “ bears the burden of provi ng that she has effected proper service. ” Jouanny v. Embassy of France , 220 F. Supp. 3d 34, 37

- 38 (D.D.C. 2016 ). I nsufficient service is

a “ fatal jurisdictional defect ” and grounds for dismissal. Id. at 38.
III. D ISCUSSION
A. Der ivative Jurisdiction Defendant fi rst argu es 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

- 086 4 (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) independent ly confers removal jurisdiction upon a complaint removed to federal court through a Westfal l declaration

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

. 2 All

2 Day v. Azar , 308 F . Supp. 3d 140 (D. D .C. 2018); Johnson v. D.C. Metro Trans it Auth. , 239 F. Supp. 3d 29 3 (D.D.C. 2017); Merkulov v. U

. S. Park Police , 75 F. Supp. 3d 126 (D.D.C. 2014);4 of thes e 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 remo ved solely p ursuant to se ction 1442, surmising t hat removal jurisdiction woul d 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 u pon fur ther consideration of the legal a uthor ities, the Court reaff irms 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 Sta tes may remove foreclosure actions against it from state court to federal court. Pursuant to 2 8 U.S

. C. § 144 2 , which Defendant cites for jurisdiction in its N o tice of Removal, United States agencies and officers may remove clai ms 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 t hat “ if the state court lacks jurisdiction over the subject matter of the parties, the federal co urt 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 , 45 1
U.S . 232, 242 n.17 (1981) (collecting cases). The federal cour t s have long applied this requirement as the doctrine of “ derivative jurisdiction , ” notwithstanding plenty of criticism by

“ courts and commenta tors

. ” Reynolds v. Behrman Cap. IV L.P. , 988 F.3d 1314, 1321 (11 th Cir. 2021). As th is Court has pr eviously expl ained in section 1442 cases, “ the justification for this d erivative jurisdiction doctrine is ‘ hardly obvious , ’ and the doctrine has faced considerable scrutiny

. ” E.g. , Robinson v. Unit ed States Dep ’ t of Health & Hum. Res. , No. 21

- 1644, 2021 W L
Cofield v. United States , 64 F. Supp. 3d 206 (D. D.C . 2014) ; McKay

- Sh ields v. Firs t Wash. R ealty , Inc. , 2012 WL 10 765195 (D.D.C. Mar. 30, 2012).5 4798100, at *3 (D.D .C. Oct. 14, 2021) (CKK) (quoting Ricci v. Salzman , 976 F. 3d 768, 773 (7 th Cir. 2020) (cleaned up) ) . The d octrine often creates “ something of a p ar adox , ” in which a federal defendant immediately moves to dismiss a case that it had jus t removed for lack of removal jurisdiction

. James v. U.S. Post al Service , 484 F. Supp. 3d 1, 4

- 5 (D.D. C . 2020) (CKK). This “ circuitous barrier ” r aises especially grave con cerns for pro se litiga nts “ who ma y not be well

- versed in the technicalities of civ il procedure or federal jurisdiction. ” Rob inson , 20 21 WL
4798100 , at *3; see also 14 C W right & Miller, Fede ral Pr ac
. & P roc. § 3722 ( 4 th ed. 2020) (collecting cases and characterizing criticism like this court ’ s as “ dese rved ” ). Nevertheless, pursuant to binding prece dent, the Court has fait hfully applied the derivative jurisdiction doctrine in section 1442 cases. E.g. , Rob inson , 20 21 WL 4798100 , at *4; James , 484 F . Supp. 3d at 5

. This case, however , is different. In this case , Defen dant did not just r emove the action
p ursuant to 28 U.S.C. § 1442. Defendant also removed it pursu ant to 28 U.S .C. § 2679(d)(2)

. The Westfall Act, 28 U.S.C. § 2679, empowers the fe deral government to remove a case from state court against a federal employee in their individual capacity u pon the filing of a certification by the Attorney G e neral or his de signe e that the employee was acting in the course of his employment at the time of the alleged tort. Id. § 267 9 (e)

- (d). The Act further pr ovides that [u]pon [such] certification . . . any civil action or proceeding commen ced upon such cl aim 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 remov al jurisdiction on the fed eral 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 certification6 is conclusive for t he p urposes of removal. ” ) ; see also id. at 253

- 54 (Sout er, J., conc urring in part and dissenting in part) ( “ In sanc tioning appellate review notwithstanding section 1447(d), the Court relies on its determination that Congress, through section 267 9 (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 fac t, removal jurisdiction arising from a Westfall cert ification is so durable that it ma y never be lost

. As Defendant co nc edes, the Court held in Osborn that , a s a mat ter of statutory construction, a district court must retain removal jurisdic tion even upon a finding that the individual defendant was not act ing in the course of their employment for the United States and

“ may not remand the suit to the state court

. ” I d. at 23 1 ; Steele v. Meyer , 9 64 F. Supp. 2d 9, 14 (D.D .C. 2013) (Howell, C

. J.) (denying motion to remand after finding ind ividual defen dants were not acting within course of employment at time of alleged tort ). The Court cannot reconcile Defen dant ’ 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 sq uared with the statutory text itse lf. 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, p ursuant 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 cou rts were required to have deriv at ive jurisdiction over claims removed pursuant to section 2679(d ) (2), they would never have removal jurisdiction over such claims. Id. ; ac cord Da Silva v. Temple Univ. Hosp., Inc. , 506 F. Supp. 3d 318 , 328 (E.D. P a. 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] nonsensic al , ’ ” Da Silva , 506 F. Supp. 3d at 32 4 (quoting Nye v. H ilo Med. C tr. ,7 20 20 WL 931926, at *4 (D. Haw. Mar. 11, 2020) ), it would mak e the whole of section 2679 entirely n ugatory. Reading a stat ute to nullify its practical import would violate the “ ‘ cardinal principle of sta tutory construction ’ that ‘ a statute ought, upon the whole , to be so construed that, if it can be pr evented, no clause, sen tence , or word shall be superfluous , void, or insignificant

. ’ ”
See TRW Inc. v. A n drews , 54 U.S. 19, 31 (2001) (quoting Duncan v. Walker , 533 U.S. 167, 174 (2001) ). Moreover, a neces sarily self

- defeating removal provision would be a n “ ‘ absurd and unjust result which C o ngress could not have intended. ’ ” See Clinton v. City of New Y ork , 5 2 4
U.S . 417, 42 9 (1998) (quoting Griffin v. Oceanic Contractors, Inc. , 458 U.S. 5 64, 574 (19 82) ) (discussing absurdity doctrine in sta tutory construct ion ).
Th ere are a d ditional consequences to Defendant ’ s reading as well. Because, under Defen dant ’ s view, “ no tort suit begun in state cou rt coul d sur vive removal ” upon a Westfall certification, “ a plaintiff who is unsure of whether a defendant is a federa l employee [ or whet her 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 th is Court ha s note d in the context of cases involving removal only
p ursuant to section 1442, this problem is only compounded for pro se litiga nts

. Rob inson , 20 21
WL 4798100 , at *3

. Accordingly, the Court h olds that it require s no derivative jurisdiction to exercise remo val jurisdiction where a claim is removed pursuant to section 2679(d)(2)

. 3
B. Service of Process

3 I n much older cases, tw o federal Courts of A p peals have applied s lightly different reasoning to also hold that derivative jurisdiction is inapplicable to c ases removed pursuant to a Westfall certif icat ions. These courts hold that state court s do hav e jurisdiction over such cases unless and until the United States files its Westfall declaration. McGow an 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.8 The Court lacks jurisdiction o ver a defenda nt unless the plaintiff effects proper service. Mann v. Castiel , 681 F. 3d 368, 372 ( D.C. Cir. 2012). To show valid service of pro cess, the plaintiff “ ‘ must demonstrate that the procedure [he] employed s atisfied the requirements of the relevant p ortions of Rule 4 [of the Federal Rules of Civil Procedure] and any othe r 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. § 1 448; 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 certifie d mail, and he served neither . Therefore, the Court must d ismiss Plaintiff ’ s complaint for i nsuf ficient service. H aving done so, the Court would be inclined to end its discussion here. However, g iven Plaintiff ’s pro

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

case. C. F TCA Jurisdiction
Beca use Plaintiff has not carried his burden to show that Baker was not acting in the course of her employment when she allegedly destroyed P laintiff ’s notebook, the Court lacks sub ject matter jurisdiction over Plaintiff ’s claim for want of administra tive exhaustion

. 1. Scope of Employment
A s previously discussed above , the W estfall 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 certific ation by the Attorney General that the defen dant 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 and9 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 evidenti ary hearing is necessary to determine whether the official was acting within the scope of their employment , usually it is more appropria te for the Court to decide the question on the papers. See Wuterich v. Murtha , 562 F.3d 37 5, 381 (D.C. Cir. 2009)

. 4 In either case, the question is governed by the law of respondeat superior in the state in which the alleged tort occurred

–– here, the Dis trict of Columbia

. Wilson v. Libby , 535 F

. 3d 697, 711 (D.C. Cir. 2008). The District of Co lumbia 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 substantiall y within the autho rized 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) Conduc t 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 Co rp. v. USPS , 238 F.3d 58, 67 (1st Cir. 2001).10 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 wi thin 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 employ er will be held li able 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: “ Di neen Baker acted outside her pr oper role when she willfully destroyed [Plaintiff ’ s] [] property. ” Pl. ’ s Mot. to Remand, ECF No. 3. This “ bare assert ion ” that B aker was not acting in the scope of her employment “ is not sufficient to defeat the Att orney General ’ s certification ” as a matter of law. Steele , 9 64 F. Supp. 2d at 1 5 . Moreover, even were Baker ’ s behavi or intentional , or even criminal, “ whether a n employee ’ s activity was criminal is probative, but not determinative, of whether their con duct was within the scope of their employment. ” Charle s , 2022 W L 1045293, at *5 ; see also Harb ury v. Hay den , 522 F. 3d 413, 422 (D.C. Cir. 2008) ( “ seriously criminal conduct can still fall within the sc ope 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, P laintiff has not alleged sufficient facts to rebut Defe ndant ’ s Westfall certification, and the Co urt conclude s that the Un ited States is the proper defendant in action.11 2. Exhaustion Having concluded t hat the United States is the proper defenda nt, the Court further finds that it lacks jurisdiction o ver Plaintiff ’ s claim because he has failed to exhaust his administra tive remedies. P ursuant to 28 U.S.C. § 2675(a), a plaintiff must “ first present[] the [ir] claim to the appropriate Fede ral 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 doctri ne bars the Court from exercising subj ect matter jurisdiction.
IV. CONCLUSION For the foregoing reasons, the Court has concluded that Plaintiff’s Defendant ’ s [5] Motion to D ismiss is GRANTED

. A n appropriate order accompanies this memorandum opinion

. Dated: June 7 , 2022 /s/ COLLEEN KOLLAR

- KOTELLY United States District Judge