United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE
Perkins has filed this action against Brian Dennis seeking an
order restraining Dennis from contacting her, going to her
home, or going to their mutual workplace. Pending before the
Court is Defendant's Motion to Dismiss. For the reasons
set forth below, the Motion is granted in part and denied in
and Dennis are employees of the National Transportation
Safety Board ("NTSB") and work at NTSB headquarters
in Washington, D.C. Perkins is a contract specialist, and
Dennis is a management support specialist. In 2014, NTSB
suspended Dennis for 30 days after it concluded that he had
"made comments and sent emails of a sexual nature to
Perkins and other female employees." Brown Decl. ¶
8, ECF No. 14-2; see Pet. Peace Order &
Addendum, ECF No. 2, at 2-3. NTSB informed Dennis that he was
not to contact Perkins again.
August 8, 2016, Perkins filed a Petition for Peace Order in
the District Court of Maryland for Prince George's County
after Dennis had contacted her the previous month through a
work email. She requested an order restraining Dennis from
contacting, attempting to contact, or harassing her; going to
her home; or going to their mutual workplace. The court
issued a Temporary Peace Order on August 8, 2016 after
finding "reasonable grounds to believe" that Dennis
had harassed her within the last 30 days and that he was
"likely to commit a prohibited act against" her in
the future. Temporary Peace Order, ECF No. 2, at 5. The Order
prohibited Dennis from, among other things, contacting her,
entering her home, or going to NTSB headquarters.
United States ("the Government"), on behalf of
NTSB, removed the action to this Court on August 15, 2016,
the day before the scheduled final peace order hearing. The
Government then filed a Motion to Dismiss for Lack of Subject
Matter Jurisdiction. In her Response to the Motion, Perkins
included a request for monetary relief "due to
negligence by the Agency, " which she labeled as a
Motion for Sanctions. Resp. 5, ECF No. 17.
Government, on behalf of NTSB and Dennis, is seeking
dismissal of the action pursuant to Federal Rule of Civil
Procedure 12(b)(1). The Government contends that this Court
does not have subject matter jurisdiction over the action
because sovereign immunity has not been waived. It is the
plaintiffs burden to show that subject matter jurisdiction
exists. Evans v. B.F. Perkins Co., Div. of Standex
Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). Rule
12(b)(1) allows a defendant to move for dismissal when it
believes that the plaintiff has failed to make that showing.
When a defendant asserts that the plaintiff has failed to
allege facts sufficient to establish subject matter
jurisdiction, the allegations in the complaint are assumed to
be true under the same standard as in a Rule 12(b)(6) motion,
and "the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction."
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009). When a defendant asserts that facts outside of the
complaint deprive the court of jurisdiction, the Court
"may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment."
Velasco v. Gov't of Indonesia, 370 F.3d 392, 398
(4th Cir. 2004); Kerns, 585 F.3d at 192. The court
should grant a Rule 12(b)(1) motion based on a factual
challenge to subject matter jurisdiction "only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law."
Evans, 166 F.3d at 647 (quoting Richmond,
Fredericksburg & Potomac R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991)).
threshold matter, the Government properly removed this action
under 28 U.S.C. § 1442 with respect to claims arising
from workplace conduct. Section 1442 allows "any officer
(or any person acting under that officer) of the United
States or of any agency thereof, in an official or individual
capacity, " to remove to federal court a civil action
against the officer "for or relating to any act under
color of such office." 28 U.S.C. § 1442(a)(1)
(2012). To qualify for removal, the defendant must raise a
"colorable federal defense." Mesa v.
California, 489 U.S. 121, 129 (1989). Here, Dennis is a
federal employee, the basis for Perkin's Petition is
activity that occurred at the NTSB office, and the
Government, as a result, has raised a colorable defense of
sovereign immunity. Courts routinely uphold removal under
§ 1442 in cases in which a federal employee is the
subject of a state court petition for a restraining order or
a peace order based on alleged workplace harassment or
violence. See, e.g., Hendy v. Bello, 555 F.App'x
224, 225-26 (4th Cir. 2014) (upholding removal of a petition
for a peace order by a postal worker against her supervisor
arising from a workplace fracas); Sidler v. Snowden,
No. AW-13-658, 2013 WL 1759579, at *l-2 (D. Md. Apr. 23,
2013) (finding that removal was proper as to allegations of
misconduct while both parties "were in their regular
work environment"); see also Haynie v.
Bredenkamp, No. 4:16-cv-773 (CEJ), 2016 WL 3653957, at
*1 (E.D. Mo. July 8, 2016) (concluding that the removal of
claims concerning workplace harassment was proper). Thus,
removal of these claims was proper.
Motion to Dismiss
Government's argument for dismissal is that sovereign
immunity bars the relief sought by Perkins. "Absent a
waiver, sovereign immunity shields the Federal Government and
its agencies from suit." FDIC v. Meyer, 510
U.S. 471, 475 (1994); accord Hendy v. Bello, 555
F.App'x 224, 226 (4th Cir. 2014) (citing United
States v. McLemore, 45 U.S. 286, 288 (1846)).
"[O]fficers acting within their authority generally . .
. receive sovereign immunity" because an action against
a government official in his official capacity is actually a
"suit against the official's office."
Hendy, 555 F.App'x at 226 (quoting Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71
(1989)). Here, Perkins has not established either that this
action should not be treated as one against the United States
or that there has been an express waiver of sovereign
immunity. The Federal Tort Claims Act ("FTCA"), 28
U.S.C. §§ 1346, 2671-2680, waives immunity for
suits seeking monetary damages, but does not waive immunity
for injunctive relief. 28 U.S.C. § 1346(b)(1);
Hendy, 555 F.App'x at 226. Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (2012),
waives sovereign immunity for employment discrimination
"suits brought by federal employees against the United
States, " but only for actions filed in federal court.
Bullock v. Napolitano, 666 F.3d 281, 284 (4th Cir.
2012). Because the state court lacked subject matter
jurisdiction over Perkins's claim for injunctive relief,
this Court lacks jurisdiction as well. See Id. at
286 (stating that in a case removed under 28 U.S.C. §
1442, "[i]f the state court lacks jurisdiction of the
subject-matter or of the parties, the federal court acquires
none" (quoting Lambert Run Coal Co. v. Bait. &
Ohio R.R., 258 U.S. 377, 382 (1922))).
on these principles, federal courts regularly dismiss removed
state court petitions for restraining orders or peace orders
filed by federal employees, based on alleged misconduct in
the workplace, to restrain the conduct of a co-worker at a
federal office. In Hendy, for example, the United
States Court of Appeals for the Fourth Circuit dismissed on
sovereign immunity grounds a petition for a peace order filed
in a Maryland state court by a postal worker seeking to
restrain her supervisor from contacting her or going to their
workplace. 555 F.App'x at 225; see also Id. at
226-27 (noting that "prohibiting a federal employee from
entering her federal workplace" would interfere with the
"performance of a federal employee's duties"
and "disturb the federal agency's internal
functions"). Other courts in this district have
dismissed Maryland petitions for peace orders on the same
basis. See, e.g., Sidler, 2013 WL 1759579, at *2
(dismissing a petition for a peace order by a civilian
employee of the United States Air Force that would have
barred his co-worker from contacting him at Andrews Air Force
Base); Richards v. Wallace, No. WDQ-09-2188, 2009 WL
4884524, at *2- 3 (D. Md. Dec. 10, 2009) (dismissing a
petition for a peace order by a Social Security
Administration employee to bar her supervisor from contacting
her). Thus, to the extent that the Petition seeks to restrain
Dennis from contacting Perkins at NTSB based on conduct in
the workplace, it is dismissed on sovereign immunity grounds.
Petition, however, also seeks an order prohibiting Dennis
from going to Perkins's home, and the Temporary Peace
Order includes the requested prohibition. The Petition does
not explicitly allege that Dennis has attempted to contact,
stalk, or harass her outside of the workplace. Nevertheless,
to the extent that the Petition can be construed as seeking
to address conduct outside the workplace, including the
specific request that Dennis not visit Perkins's
residence, such claims would not reasonably be construed as
claims against Dennis in his capacity as a federal employee