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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 22-1302 (TJK)

SIOHBAN FERGUSON,

Plaintiff,

v.

DENIS MCDONOUGH,

Defendant.

MEMORANDUM

Plaintiff sued Defendant, the Secretary of Veterans Affairs, in D.C. Superior Court for 

employment discrimination. She alleges that she faced discrimination based on her “status as a 

parent.” ECF No. 1-1 at 3. She explains that she suffered an adverse employment action because 

she missed work to care for her child during the COVID-19 pandemic. Id. at 4. She requests 

money damages for loss of wages and other related harms. Id. at 3.

Defendant removed to this Court under 28 U.S.C. § 1442(a)(1). ECF No. 1 at 2. He now 

moves to dismiss, asserting two reasons the Court lacks subject-matter jurisdiction over this action. 

ECF No. 7. The Court agrees that it lacks subject-matter jurisdiction over the aspects of Plaintiff’s 

complaint that Defendant identifies. Still, because Plaintiff is proceeding pro se, the Court must

construe her allegations generously. Having done so, it concludes that to the extent Plaintiff seeks 

to plead another claim over which the Court has subject-matter jurisdiction, she has failed to state 

a claim, and so the Court will sua sponte dismiss it for that reason.

I. Legal Standards

Defendant moves under Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint 

for lack of subject-matter jurisdiction. ECF No. 7 at 2. So Plaintiff “bears the burden of 
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establishing that the court has jurisdiction.” Sheppard v. United States, 640 F. Supp. 2d 29, 33 

(D.D.C. 2009). That burden persists even though, as a pro se litigant, Plaintiff is “held to a less 

stringent standard” than other plaintiffs. Bickford v. United States, 808 F. Supp. 2d 175, 179 

(D.D.C. 2011). The Court may consider the allegations in her complaint, undisputed facts in the 

record, and, if necessary, its resolution of disputed facts. Coal. for Underground Expansion v. 

Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). The Court must ensure it has subject-matter jurisdiction before turning to the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). 

To the extent the Court has subject-matter jurisdiction, the question is whether Plaintiff has 

stated a claim for which relief may be granted. Defendants have not moved to dismiss on that 

basis, so the ordinary standard under Federal Rule of Civil Procedure 12(b)(6) does not apply. See 

Baker v. Director, 916 F.2d 725, 726–27 (D.C. Cir. 1990) (per curiam). Still, sua sponte dismissal 

is appropriate if it is “patently obvious” that Plaintiff cannot “prevail[ ] on the facts alleged in [her] 

complaint.” Id. at 727. That is so “when the established law plainly prohibits this kind of suit.” 

Jefferies v. District of Columbia, 916 F. Supp. 2d 42, 47 (D.D.C. 2013).

II. Analysis

Neither Plaintiff’s complaint nor the record provides much detail about her claims. So it 

is hard to glean her legal theory of recovery. But because she filed her complaint pro se, the Court 

will “infer the claims made wherever possible,” seeking to identify “all possible legal theories that 

could apply.” Davis v. United States, 973 F. Supp. 2d 23, 26 (D.D.C. 2014). That inquiry is aided 

by the few details that are available: Plaintiff is seeking money damages against an officer of the 

federal government for employment discrimination, and she mentions some legal authorities related to “caregiver discrimination.” ECF No. 9 at 6–7; see also ECF No. 1 at 1.1

1 The legal authorities she mentions include a guidance document from the Equal Employment 
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That Defendant is a federal officer suggests two paths. First, Plaintiff might have sued 

Defendant in his official capacity, in which case the real party-in-interest is the United States. 

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). Or second, she might have sued Defendant in 

his individual capacity. The jurisdictional questions in this case largely arise from the former 

possibility, so the Court will begin there.

A. The Court Lacks Subject-Matter Jurisdiction over a Claim against Defendant 

in His Official Capacity

The United States and its agencies are immune from a suit against an officer in his official 

capacity. Clark v. Libr. of Congr., 750 F.2d 89, 103 (D.C. Cir. 1984). And a suit barred by sovereign immunity lies outside this Court’s jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 475

(1994). The Court’s power to hear an official-capacity suit thus turns on whether the United States 

has consented to be sued. United States v. Mitchell, 463 U.S. 206, 212 (1983). Such a waiver 

must be “unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996).

1. Waivers of Sovereign Immunity

Plaintiff’s task, then, was to identify statutory bases on which this claim might proceed. A 

close reading of her complaint and her response to the motion to dismiss reveals three candidates: 

(1) Title VII, (2) Executive Order 13,152, and (3) various civil-rights laws of the District of Columbia. See ECF No. 9 at 6–8. No candidate qualifies.

The latter two bases are easily dismissed because they are not federal statutes. The executive order indeed forbids discrimination “based on an individual’s status as a parent.” Exec. Order 

13,152, 65 Fed. Reg. 26115, 26115 (May 2, 2000). But an executive order cannot waive sovereign 

Opportunity Commission that references Title VII of the Civil Rights Act of 1964 (“Title VII”), 

an executive order prohibiting discrimination based on parental status, a bill that was “[i]ntroduced 

into the Senate,” and various laws of the District of Columbia. ECF No. 9 at 6–7.
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immunity; only Congress can do that. See Dep’t of the Army v. F.L.R.A., 56 F.3d 273, 275 (D.C. 

Cir. 1995). That may be why the order explains that it does not “confer any right or benefit enforceable in law or equity against the United States or its representatives.” Exec. Order 13,152, 

65 Fed. Reg. at 26115. By the same token, the laws of the District of Columbia are not federal 

laws, so they cannot waive federal sovereign immunity either.

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That leaves Title VII. There, Plaintiff’s claim gains a foothold. Congress has waived 

federal sovereign immunity for suits against the “head of [a relevant] department, agency, or unit” 

of the federal government for violating Title VII.3

 But when Congress waives sovereign immunity, it may choose to do so on the condition that the suit is brought in particular courts. United 

States v. Mottaz, 476 U.S. 834, 841 (1986). That is true here: Suits under Title VII can be brought 

only in federal court. Day v. Azar, 308 F. Supp. 3d 140, 144–45 (D.D.C. 2018); Williams v. Perdue, 386 F. Supp. 3d 50, 54 (D.D.C. 2019).

Normally, that fact would not present a problem in this (federal) Court. But because this 

case began in the D.C. Superior Court, the ordinary basis of this Court’s jurisdiction over Title VII 

claims—federal-question jurisdiction under 28 U.S.C. § 1331—is not in play.

2. Derivative Jurisdiction

Under the traditional rule, when a case is removed from state to federal court, the federal 

court’s jurisdiction derives from that of the state court. Lambert Run Coal Co. v. Balt. & Ohio 

2 See Dist. Props. Assocs v. District of Columbia, 743 F.2d 21, 27 (D.C. Cir. 1984) (explaining 

that District of Columbia law is generally “treated as local law, interacting with federal law as 

would the laws of the several states”); M’Culloch v. Maryland, 17 U.S. 316, 429 (1819) (“The 

sovereignty of a state extends to everything which exists by its own authority, or is introduced by 

its permission; but [it does not] extend to those means which are employed by congress to carry 

into execution powers conferred on that body by the people of the United States[.]”).

3 42 U.S.C. § 2000e-16(c); McNutt v. Hills, 426 F. Supp. 990, 1002 n.27 (D.D.C. 1977) (describing 

that provision as “an explicit waiver of sovereign immunity”).
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R.R. Co., 258 U.S. 377, 382 (1922). In other words, “if the state court lack[ed] jurisdiction over 

the subject matter or the parties, the federal court acquires none upon removal, even though the 

federal court would have had jurisdiction if the suit had originated there.” Arizona v. Manypenny, 

451 U.S. 232, 242 n.17 (1981). In such circumstances, the court must dismiss the claim. Robinson 

v. H.H.S., 21-CV-1644 (CKK), 2021 WL 4798100, at *2 (D.D.C. Oct. 14, 2021).

Congress has eliminated the traditional rule for removals under 28 U.S.C. § 1441—but not 

for those under Section 1442(a). Merkulov v. U.S. Park Police, 75 F. Supp. 3d 126, 130 (D.D.C. 

2014). The implication, adopted by “[f]ederal courts in this [d]istrict, and throughout the country,” 

is that “the doctrine of derivative jurisdiction still applies to claims removed under Section 1442.” 

Id. And this case was removed under Section 1442(a)(1) because this suit relates to Defendant’s 

acts as a federal officer. ECF No. 1 at 2. Thus, this Court has only derivative jurisdiction.

That conclusion means Plaintiff’s Title VII claim must be dismissed, as Defendant asserts. 

The D.C. Superior Court lacks jurisdiction to hear Title VII claims against federal employers because the statute’s waiver of sovereign immunity does not “expressly authorize[ ]” it to hear those 

claims. Day, 308 F. Supp. 3d at 143; see also Williams, 386 F. Supp. 3d at 54; Robinson, 2021 

WL 4798100, at *4. Because this Court has only that court’s jurisdiction here, it cannot hear a 

claim under Title VII.

B. The Complaint Does Not State a Claim against Defendant in His Personal Capacity

There is a way to read Plaintiff’s complaint as seeking to assert a claim over which this 

Court has subject-matter jurisdiction. Plaintiff requests damages, so perhaps she is trying to plead 

a claim against Defendant in his individual capacity. Cf. Hafer v. Melo, 502 U.S. 21, 25 (1991). 

And she referenced at least a conceivable basis for doing so.
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In very limited circumstances, a wronged party may have an implied cause of action for 

damages, a Bivens claim, against federal officials for constitutional violations.4 Plaintiff responded to Defendant’s Motion in part by explaining that she has a “fundamental right to the care, 

custody, and control” of her child. ECF No. 9 at 4 (citing Palko v. Connecticut, 302 U.S. 319, 

324–27 (1937), and Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). In other words, she 

may be seeking to assert a claim for damages against Defendant as an individual for violating her 

putative substantive-due-process right to care for her children.5 See Troxel v. Granville, 530 U.S. 

57, 65–66 (2000).

To the extent Plaintiff asserts a Bivens claim against Defendant in his individual capacity, 

this Court has subject-matter jurisdiction. State courts may hear Bivens claims under the principle 

of concurrent jurisdiction. See Tafflin v. Levitt, 493 U.S. 455, 458–60 (1990); cf. Bush v. Lucas, 

462 U.S. 367, 371 (1983) (explaining that a Bivens claim had been filed in state court and removed 

to a federal district court). And the question whether Plaintiff does in fact have an implied cause 

of action for an alleged constitutional violation does not implicate subject-matter jurisdiction. See 

Doe v. Metro. Police Dep’t, 445 F.3d 460, 466–67 (D.C. Cir. 2006). Thus, the Court can determine

whether Plaintiff has stated a claim along these lines.

4 See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 395–

97 (1971); Davis v. Passman, 442 U.S. 228, 248–49 (1979); Carlson v. Green, 446 U.S. 14, 19–

23 (1980).

5 Such a claim would require that Defendant was personally involved in violating Plaintiff’s rights. 

In an individual-capacity suit, an officer is liable only “for his or her own acts, not the acts of 

others.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017). There is no respondeat superior liability 

in a Bivens claim. Lyles v. U.S. Marshals Serv., 301 F. Supp. 3d 32, 40 (D.D.C. 2018). Plaintiff 

has not alleged that Defendant personally did anything that violated her constitutional rights. Independent of the Court’s analysis below, that deficiency also warrants dismissal of her claim.
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The Supreme Court has not recognized a Bivens claim for violating the Due Process Clause 

of the Fifth Amendment related to the freedom to raise one’s children. So this Court must decide 

whether to recognize a new Bivens claim. The answer must be no if there are any “special factors 

that counsel hesitation.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (quoting Abbasi, 137 

S. Ct. at 1857 (alterations adopted)). There are here.

The most relevant special factor here is “the existence of a comprehensive remedial 

scheme.” Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (citing Bush, 462 U.S. at 388–90). 

Such a remedial scheme “precludes creation of a Bivens [action].” Id. That factor is relevant here 

because “Title VII” is a “a comprehensive scheme that addresses precisely the wrongdoing alleged 

by [Plaintiff].” Webster v. Spencer, 318 F. Supp. 3d 313, 320 (D.D.C. 2018). Title VII, as the 

Supreme Court has explained, is “the exclusive judicial remedy for claims of discrimination in 

federal employment.” Id. (quoting Brown v. G.S.A., 425 U.S. 820, 835 (1976)). Thus, this Court 

cannot recognize a new Bivens claim under these circumstances.

In other words, it is “patently obvious” that Plaintiff cannot prevail on a Bivens claim. 

Baker, 916 F.2d at 727. That is so because the exclusivity of Title VII is well-established, because 

her claim is substantively novel, and because the Supreme Court has repeatedly emphasized that 

recognizing new Bivens actions “is a disfavored judicial activity.” Hernandez, 140 S. Ct. at 742 

(quotation omitted). Thus, “established law plainly prohibits” such a claim. Jefferies, 916 F. Supp. 

2d at 47. And to the extent Plaintiff’s complaint seeks to asserts one, the Court will dismiss it 

because it does not state a claim.6

6 Because this deficiency cannot be cured with new factual allegations, the Court’s dismissal on 

these grounds is with prejudice. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996).
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III. Conclusion

For all the above reasons, the Court will grant Defendant’s Motion and dismiss the case in 

part for lack of subject matter jurisdiction and in part for failure to state a claim. A separate order 

will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: December 14, 2022