United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant Kirk
Washington's motion to dismiss and to substitute the
United States as a defendant (#4).
matter began in state small claims court. Plaintiff, pro
se, filed a state law malpractice claim against
defendant Washington-a dentist-alleging he failed to fix an
unspecified complication with plaintiff's tooth.
Plaintiff sought $600 in damages. Defendant Washington is
employed by Betty Jean Kerr - People's Health Centers.
Defendant removed the case to federal court under the federal
officer removal statute, 28 U.S.C. §1442(a), and also
under a provision of the Westfall Act, 28 U.S.C. §
2679(d)(2). In doing so, he alleges he is “deemed to be
a federal employee” because his employer, Betty Jean
Kerr, is eligible for Federal Tort Claims Act
(“FTCA”) coverage, see 28 U.S.C. §
1346, pursuant to the Federally Supported Health Centers
Assistance Act, see 42 U.S.C. § 233(a), (h).
FTCA waives sovereign immunity “against the United
States, for money damages … [involving] injury or loss
of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment[.]” 28 U.S.C. § 1346(b)(1). The
Westfall Act provides federal employees total immunity from
tort claims arising out of acts undertaken in the course of
their official duties. 28 U.S.C. § 2679(b)(1). It also
empowers the Attorney General (or the United States Attorney
acting on their behalf) to certify that a federal employee
sued for wrongful or negligent conduct “was acting
within the scope of his office or employment at the time of
the incident out of which the claims arose.” 28 U.S.C.
§ 2679(d)(1), (2). When this happens, “the
employee is dismissed from the action, and the United States
is [properly] substituted as defendant in place of the
employee.” Osborn v. Haley, 549 U.S. 225, 230
(2007). If the action began in state court, the Westfall Act
further calls for it to be removed to a federal district
court, and the Attorney General's certification is
treated as “conclusive … for purposes of
removal.” 28 U.S.C. § 2679(d)(2).
the United States Attorney for this District certified that
Betty Jean Kerr is a private entity eligible for FTCA
coverage, that Washington was employed by Betty Jean Kerr,
and that Washington was acting within the scope of his
employment at the time of the incident complained of by
plaintiff. (Doc. #1-3). The pending motion, thus, seeks
Washington's substitution for the United States as
federal courts have exclusive jurisdiction over FTCA claims,
28 U.S.C. § 1346(b)(1), this Court initially considered
whether this case's removal pursuant to §§ 1442
and 2679 was thwarted by the derivative jurisdiction
doctrine. That doctrine states that, “if the state
court lacks 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). To be sure,
there is a dispute in the federal courts about the
application of the doctrine, but it is primarily in the
context of the general removal statutes, 28 U.S.C.
§§ 1441 and 1442. This Court is satisfied that the
doctrine of derivative jurisdiction does not apply to this
case because of the plain language of 28 U.S.C. §
2679(d)(2), which explicitly states that a civil action such
as this must be removed:
[A]ny civil action commenced upon such a claim in a State
court shall be removed.. .at any
time before trial.. .to the district court
of the United States for the district and division embracing
the place in which the action or proceeding is pending.
28 U.S.C. § 2679(d)(2) (emphasis added). In contrast,
the general removal statutes are couched in the terms
“may be removed.” See 28 U.S.C.
§§ 1441, 1442; Katz v. Spiniello
Companies, 2016 WL 7209662 at *4 (D. Mass. Dec. 12,
2016). Further, this determination is consistent with the
Supreme Court's decision in Osborn, 549 U.S. at
230, which held that the § 2679 removal of a case
against a federal officer was, upon certification of the
Attorney General, mandatory, without addressing the
derivative jurisdiction doctrine at all.
defendant's motion will be granted. Defendant Washington
is dismissed, and the United States is substituted as
IT IS HEREBY ORDERED that defendant Kirk
Washington's motion to dismiss and to substitute the
United States as a defendant (#4) is
GRANTED. The United States is substituted as
party-defendant in place of Kirk Washington.
 It appears that no Circuit Court of
Appeals has addressed this matter. Although there is some
disagreement among district courts, this Court agrees with
those that have determined that 28 U.S.C. § 2679(d)(2)
allows for removal of an FTCA claim from state claim due to
the explicit, mandatory language used by the statute.
Compare, e.g., January Johnson v. United States,
2018 WL 5880138 at *2-3 (CD. Cal. June 12, 2018) (refusing to
apply derivative jurisdiction to Section 2679 because its
“application would render the removal provision of
[that section] nonsensical if all actions so removed were
dismissed for lack of subject matter jurisdiction) and
Katz v. Spiniello Companies, 2016 WL 7209662, at *4 (D.
Mass. Dec. 12, 2016) (same), with Kennedy v. Paul,
2013 WL 5435183, at *5 (D. Conn. Sept. ...