United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
Jason Hardy removed this pro se action from state court on
the basis of federal officer removal, 28 U.S.C. §
1442(a)(1). The matter is now before the Court on a review of
the propriety of removal, as well as on Defendant's
motion to dismiss for lack of subject matter jurisdiction.
For the reasons discussed below, the Court is not satisfied
that removal is proper and declines to rule on
Defendant's motion to dismiss until the propriety of
removal is established.
Kaye Medina filed a “Petition for Order of Protection -
Adult” pro se in Missouri state court on February 21,
2017. In her petition, Plaintiff alleged that in February
2017 Hardy stalked, harassed, and coerced her. Plaintiff
alleged that Defendant stalked her “internet connection
at work, ” performed “major internet updates
during her emotional cycles like a divorce, ” and used
her “mental health records to break [her] down at
work.” ECF No. 3 at ¶ 12. Plaintiff stated that
these events occurred at 1 Archives Drive, St. Louis,
Missouri. The Court takes judicial notice that the National
Personnel Records Center (“NPRC”) is located at
petition, Plaintiff described Hardy as a
“coworker.” Id. at ¶ 9. She checked
a box on the form petition indicating that the two had never
resided together. Id. at ¶ 6. Plaintiff
requested that the state court issue an order of protection
restraining Hardy from “committing or threatening to
commit domestic violence, sexual assault, molesting, or
disturbing the peace of [Plaintiff] wherever [she] may be
found, ” stalking Plaintiff, entering her dwelling,
entering her place of employment, coming within 500 feet of
her, and communicating with her in any manner. Id.
at ¶ 15.
also checked additional boxes on the petition requesting
various forms of monetary relief, namely that Defendant pay
her monthly rent, pay a “reasonable fee” for
housing and services for domestic violence victims, pay the
cost of treatment for any injuries sustained by Plaintiff as
a result of Defendant's conduct, and pay Plaintiff's
court costs and attorney's fees. Id. at
¶¶ 20 - 28. Plaintiff requested that Defendant
participate in counseling for batterers and that the order
renew yearly unless Defendant requests a hearing reviewing
the order. Id. at ¶ 29.
removed the case to this Court on March 3, 2017. Defendant
asserted that federal jurisdiction was proper under 28 U.S.C.
§ 1442(a)(1), which provides, in relevant part, that a
“civil action . . . that is commenced in a State court
and that is against or directed to . . . the United States or
any agency thereof or any officer (or any person acting under
that officer) of the United States or of any agency thereof,
in an official or individual capacity, for or relating to any
act under color of such office” may be removed by the
defendant to the district court of the United States for the
district and division embracing the place wherein it is was
filed.” In his notice of removal, Defendant claimed
that the acts alleged against him were “causally
related to his position as Chief, Management Systems Staff at
NPRC of the National Archives and Records Administration and
are ‘acts under color of office.'” ECF No. 1
at ¶ 4.
March 9, 2017, Defendant filed his motion to dismiss for lack
of subject matter jurisdiction now under consideration. In
his motion, Defendant first asserts that the Missouri
statutes “cited by” Plaintiff's state court
petition were not intended to address Plaintiff's
“vague workplace complaints” and instead were
intended to protect victims of domestic violence and
stalking. ECF No. 1 at 3. Defendant additionally claims that
“all contact between Medina and Hardy take place at the
NRPC within the employer/employee relationship, ” and
that Medina's petition would prevent Defendant from
carrying out his duties as the Chief of Management Systems
Staff by preventing Defendant from approaching Medina at the
worksite, “contacting her via office-wide emails,
” and performing computer updates while Medina is
employed at the NPRC.
then argues that the Court lacks subject-matter jurisdiction
to hear this case. Defendant contends that because both
Plaintiff and Defendant are federal employees and all of the
behaviors complained of by Plaintiff occurred at their
worksite, the only remedies available to Plaintiff are
through the Civil Service Reform Act of 1978
(“CSRA”), 5 U.S.C. §7501, et seq.,
and Title VII of the Civil Rights Act (“Title
VII”), 42 U.S.C. §2000, et seq., statutes
which pre-empt any state law claims Plaintiff may bring
relative to her employment. Plaintiff, according to
Defendant, failed to establish that she exhausted the
administrative remedies under either statute, and she failed
to cite any other “statutory basis for jurisdiction in
the state court.” For these reasons, Defendant argues,
this Court lacks subject matter jurisdiction and the case
should be dismissed.
did not respond to Defendant's motion to dismiss, and the
time to do so has passed.
Court first addresses the propriety of federal officer
removal of this action under 28 U.S.C. § 1442(a)(1).
Lack of subject matter jurisdiction cannot be waived and can
be raised by the court sua sponte. Bueford v.
Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir.
1993). Subsection 1442(d) provides, in relevant part, that
the term “civil action” as used in subsection
(a), “include[s] any proceeding (whether or not
ancillary to another proceeding) to the extent that in such
proceeding a judicial order, including a subpoena for
testimony or documents, is sought or issued, ” and
courts have held that a state court petition for a protective
order is a “civil action” under this definition.
See, e.g., Haynie v. Bredenkamp, No.
4:16-CV-773 (CEJ), 2016 WL 3653957, at *1 (E.D. Mo. July 8,
Supreme Court has made clear that § 1442(a)(1) is to be
“liberally construed, ” Watson v. Philip
Morris Cos., 551 U.S. 142, 147 (2007). Four elements are
required for removal under § 1442(a)(1): “(1) a
defendant has acted under the direction of a federal officer;
(2) there was a causal connection between the defendant's
actions and the official authority; (3) the defendant has a
colorable federal defense to the plaintiff's claims; and
(4) the defendant is a ‘person, ' ...