Pollard v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:20-cv-00640-M

MARCIELLA POLLARD, )

)

Plaintiff, )

) OPINION

) AND ORDER

)

UNITED STATES OF AMERICA, )

)

Defendant. )

This matter comes before the court on: (1) the Government’s motion to dismiss the complaint, filed

on December 21, 2020 [DE-11]; and (2) Plaintiff's motion to remand the matter to state court, filed

December 30, 2020 [DE-14]. For the reasons that follow, Plaintiffs motion is DENIED and the

Government’s motion is GRANTED.

I. Background

On November 12, 2020, Plaintiff filed a form complaint in Cumberland County, North Carolina

District Court seeking a no-contact order against Nathaniel Hermann “for stalking or nonconsensual sexual

conduct[.]” [DE-1-1] Within the complaint, Plaintiff generally alleges that Hermann is Plaintiff's boss and

that Hermann has “torment[ed], terrorize[d], and terrif[ied]” Plaintiff and her colleagues by yelling and

making threatening gestures at them during meetings at their “job site[.]” [DE-1-1 at 5] In essence, Plaintiff

asked the state court to permanently order Hermann to avoid all contact with Plaintiff. [DE-1-1 at 6]

The Government removed Plaintiffs lawsuit to this court on Hermann’s behalf on November 30,

2020, invoking both 28 U.S.C. § 2679 and 28 U.S.C. § 1442 [DE-1], and subsequently filed an amended

notice of removal on January 27, 2021 with additional detail [DE-21].! Within its amended notice of

removal, the Government alleges that: (1) “Plaintiff is an employee with Leebcor Services, LLC

(“Leebcor”), which is the prime contractor for a construction project at Fort Bragg, North Carolina” that “is

being overseen by the United States Army Corps of Engineers” (“ACE”); and (2) Hermann is “the

Administrative Contracting Officer on the project” and was “acting in the course and scope of his

employment at the time of the incident out of which Plaintiffs claim arose[.]” [DE-21 992, 3, 6] The

Government also filed a 28 U.S.C. § 2679 certification that (1) certifies that Hermann “was acting within

the scope of his employment as an employee of [ACE] at the time of the incident alleged in the Complaint”

and (2) purports to substitute the Government as party defendant in Hermann’s place. [DE-2]

On December 21, 2020, the Government filed a motion to dismiss the complaint pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) (hereinafter, e.g., “Rule 12(b)(1)”). [DE-11] Within its

supporting memorandum, the Government, inter alia, invokes its sovereign immunity as a basis for

dismissal. [DE-12]

Plaintiff then filed a motion to remand the matter to state court on December 30, 2020. [DE-14]

Within her supporting memorandum, Plaintiff argues, inter alia, that the Government’s certification of

Hermann’s employment is insufficient to allow the court to exercise jurisdiction. [DE-15]

The court construes the Government’s amended notice of removal as a motion by the Government seeking the

court’s leave to file the same, since a party has no right to amend a notice of removal without the court’s permission

once the thirty-day period during which 28 U.S.C. § 1446 allows removal has passed. See Wood v. Crane Co., 764

F.3d 316, 323-24 (4th Cir. 2014) (affirming denial of motion to amend notice of removal as untimely). But because:

(1) the court concludes that the amended notice of removal merely adds detail regarding the two legal bases for

removal already invoked within the Government’s initial notice of removal, see id. (“amendment is appropriate for

technical changes, such as the exact grounds underlying diversity jurisdiction”); (2) Plaintiff challenged both of these

bases within its motion to remand and supporting memorandum [DE-14~-15]; and (3) Plaintiff has not in any way

opposed the amended notice of removal, the court ALLOWS the amended notice of removal and treats it as the

Government’s operative pleading. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended,

upon terms, in the trial or appellate courts.”); Fed. R. Civ. P. 15(a)(2) (allowing amendment of pleadings with court’s

leave, stating that “[t]he court should freely give leave when justice so requires”).

The parties’ motions have both been fully briefed and are ripe for adjudication.

Il. Analysis

The court first addresses Plaintiff's motion to remand, since were that motion to be granted, the

Government’s motion to dismiss would be rendered moot.

a. Removal/Plaintiff’s motion to remand

Within her memorandum in support of her motion to remand, Plaintiff argues that neither 28 U.S.C.

§ 2679 nor 28 U.S.C. § 1442 are applicable in this case, and that her lawsuit was therefore improperly

removed from state court. [DE-15]

28 U.S.C. § 2679, also known as the Westfall Act, “accords federal employees absolute immunity

from common-law tort claims arising out of acts they undertake in the course of their official duties.”

Osborn v. Haley, 549 U.S. 225, 229 (2007). As invoked by the Government within its amended notice of

removal [see DE-21 at 1], the Westfall Act reads as follows:

Upon certification by the Attorney General that the defendant employee 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 claim 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. Such action or

proceeding shall be deemed to be an action or proceeding brought against the

United States under the provisions of this title and all references thereto, and the

United States shall be substituted as the party defendant. This certification of the

Attorney General shall conclusively establish scope of office or employment for

purposes of removal.

28 U.S.C. § 2679(d)(2). Within its 28 U.S.C. § 2679 certification, the Government’s counsel claims

authority delegated by the Attorney General and certifies that Hermann “was acting within the scope of his

employment as an employee of [ACE] at the time of the incident alleged in the Complaint[.]” [DE-2] The

Osborn Court said that “[28 U.S.C. §] 2679(d)(2) is operative when the Attorney General certifies scope of

employment, triggering removal of the case to a federal forum. At that point, § 2679(d)(2) renders the

federal court exclusively competent and categorically precludes a remand to the state court.” 549 U.S. at

243.

Plaintiff argues, however, that the Attorney General’s certification is an improper basis for removing

her lawsuit because: (1) the Westfall Act is part of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seg.

(the “FTCA”); and (2) she has not brought any tort claim for money damages, but has merely sought a no-

contact order. [DE-15 at 4-5]; see also 28 U.S.C. § 2679(b)(1) (stating that the FTCA remedy “‘is exclusive

of any other civil action or proceeding for money damages by reason of the same subject matter against the

[federal] employee whose act or omission gave rise to the claim” (emphasis added)); 28 U.S.C. § 1346(b)

(granting district courts “exclusive jurisdiction of civil actions on claims against the United States|] for

money damages . . . for 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” (emphasis added)). 28 U.S.C. § 2679(d)(2) by its terms concerns “any civil action or

proceeding” without mention of the specific nature of the relief sought thereby, and Plaintiff does not direct

the court’s attention to any authority standing for the proposition that the Westfall Act certification

procedure may only be used to remove tort claims that seek money damages. But the Obsorn Court did say

that “the Westfall Act[] accords federal employees absolute immunity from common-law tort claims arising

out of acts they undertake in the course of their official duties.” 549 U.S. at 229 (emphasis added). The

Government responds by citing decisions from this court holding that 28 U.S.C. § 2679(d)(2) is a valid

basis for removing lawsuits seeking injunctive relief for alleged tortious conduct, including two cases where

no-contact orders were sought from North Carolina’s courts. See Blount v. United States, No. 5:19-CV-

347-FL, 2020 U.S. Dist. LEXIS 49001 (E.D.N.C. Mar. 20, 2020) (based upon alleged screaming);

Middleton v. United States, No. 5:20-CV-484-BO, 2021 U.S. Dist. LEXIS 13095 (E.D.N.C. Jan. 21, 2021)

(based upon alleged stalking).

But neither party has provided the court with any appellate authority clearly setting forth the answer

to the question raised by Plaintiff's argument, and the court’s independent research has uncovered none.

Were it necessary, the court would be inclined to follow Blount and Middleton and hold that the 28 U.S.C.

§ 2679(d)(2) removal was proper. But the court need not so rule, because the Government also invoked 28

U.S.C. § 1442, the Federal Officer Removal Statute (the “FORS”), in both its initial and amended notices

of removal. [DE-1 at 1; DE-21 at 1]

The FORS, which the Fourth Circuit has said “aims to protect the Federal Government from

interference with its operations, primarily by providing a federal forum for a federal defense[,]” Sawyer v.

Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017) (internal quotation marks, ellipsis, and citations

omitted), reads in relevant part as follows:

(a) A civil action . . . that is commenced in a State court and that is against or

directed to any of the following may be removed by them to the district

court of the United States for the district and division embracing the place

wherein it is pending:

(1) 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[.]

28 U.S.C. § 1442(a)(1). The Fourth Circuit has stated the elements of FORS removal as follows:

The federal officer removal statute allows a defendant to remove a case from state

to federal court if the defendant establishes

(1) it is a federal officer or a person acting under that officer;

(2) a colorable federal defense; and

(3) the suit is for an act under color of office, which requires a causal

nexus between the charged conduct and asserted official authority[.]

Ripley v. Foster Wheeler LLC, 841 F.3d 207, 209-10 (4th Cir. 2016) (internal quotation marks, brackets,

emphasis, and citations omitted). Where the removing party has “plausibly asserted” these three elements,

the FORS is properly invoked and removal is allowed. Sawyer, 860 F.3d at 259.

The court concludes that the Government has plausibly asserted the elements necessary to properly

remove the case under the FORS on Hermann’s behalf.” First, both the initial and amended notices of

removal plausibly allege that Hermann was an “Administrative Contracting Officer” working for ACE on

the Fort Bragg project [DE-1 42; DE-21 13], a fact which Plaintiff herself alleges within the complaint

[DE-1-1 at 5]. Second, the amended notice of removal invokes the Government’s sovereign immunity [DE-

21 { 14], which as described below in Section II(c) is a defense that is beyond colorable on the facts alleged

in this case.? See Cnty. Bd. v. Express Scripts Pharm., Inc., No. 20-1031, 2021 U.S. App. LEXIS 13086, at

*19_-20 (4th Cir. May 3, 2021) (“To be colorable . . . the defense must only be plausible.” (internal quotation

marks and citation omitted)). And finally, since Plaintiff alleges that (1) Hermann is ACE’s officer “that

oversees [her] work and directs [her] duties on the job site” and (2) all of Hermann’s purported misconduct

took place “on the job site’* and in connection with Hermann and Plaintiffs professional working

? See infra note 6 and accompanying text (Government removal on Hermann’s behalf under the FORS not improper).

3 Although the Government’s initial notice of removal did not specify that it would rely upon a sovereign-immunity

defense [see DE-1], the amended notice of removal did so [see DE-21 J 14]. As discussed above, see supra note 1,

the court has allowed the amended notice of removal, in part because Plaintiff expressed no opposition to the

amendment during the several months that have passed since the amended notice was filed. See Hendy v. Bello, 555

F. App’x 224, 226 (4th Cir. 2014) (unpublished per curiam) (affirming removal as proper where the “colorable federal

defense requirement was met at the time the district court dismissed the action.” (emphasis added)).

‘ Plaintiff alleges that “after exiting a hostile meeting with Nathaniel Hermann, [Hermann] followed [her] to [her]

personal vehicle and verbally assaulted [her] and made threatening gestures with his hands about [her] work product.”

[DE-1-1 at 5] Plaintiff has not invoked any authority standing for the proposition that purported workplace

relationship as agents of ACE and Leebcor, respectively [DE-1-1 at 5], Plaintiff's own complaint alleges

the relevant nexus between Hermann’s alleged misconduct and his official authority. [see DE-21 15

(Government’s amended notice of removal invoking complaint on this score)] Although Plaintiff argues

that Hermann’s “conduct is certainly not part of any of his contract administration duties” and that the

Government “fail[s] to explain how such intentional, abusive outbursts could possibly be related or

connected to his employment” [DE-15 at 3], the Supreme Court long ago made clear that the FORS allows

for removal of such claims, and that Plaintiff's argument must fail:

[O]nce petitioners had shown that their only contact with respondent occurred

inside the penitentiary, while they were performing their duties, we believe that

they had demonstrated the required “causal connection.” The connection consists,

simply enough, of the undisputed fact that petitioners were on duty, at their place

of federal employment, at all the relevant times. If the question raised is whether

they were engaged in some kind of “frolic of their own” in relation to respondent,

then they should have the opportunity to present their version of the facts to a

federal, not a state, court. This is exactly what the removal statute was designed to

accomplish. Petitioners sufficiently put in issue the questions of official

justification and immunity; the validity of their defenses should be determined in

the federal courts.

Willingham v. Morgan, 395 U.S. 402, 409 (1969); see also Sawyer, 860 F.3d at 258 (noting subsequent to

Willingham and Ripley that Congress amended the FORS in 2011 “to cover actions ‘for or relating to any

act under color of federal office,’ adding the words ‘or relating to[,]’” noting that “[t]his new language

‘broadened the universe of acts’ that enable federal removal, such that there need be only ‘a connection or

misconduct becomes something else as a legal matter when it continues from the workplace to the parking lot adjacent

thereto. Without such authority, or allegations or evidence not before the court in this case, the only reasonable

inference is that this alleged interaction also took place at the “job site[.]” Cf O’Connor v. Ortega, 480 U.S. 709,

715 (1987) (holding that, for Fourth Amendment purposes, “[t]he workplace includes those areas and items that are

related to work and are generally within the employer’s control”); Wiley v. DOJ, 328 F.3d 1346, 1351 (Fed. Cir.

2003) (“Wiley’s car, as situated in the Institution’s parking lot, was within the ‘workplace’ as set forth in Ortega.”).

In any event, because Plaintiff alleges that the alleged interaction at her vehicle followed a meeting on the job site

and concemed her “work product” [DE-1-1 at 5], Plaintiff has alleged the relevant “connection or association between

the act in question and the federal office” for purposes of the FORS, regardless of where Plaintiff's vehicle was

parked. Sawyer, 860 F.3d at 258 (internal brackets, emphasis, and citations omitted) (discussed infra).

association between the act in question and the federal office.’” (internal brackets and citations omitted)).

In light of Plaintiff's allegations (invoked by the Government within its amended notice of removal) and

these authorities, the court concludes that the Government has plausibly asserted a “connection or

association” between Hermann’s alleged misconduct and his official authority, Sawyer, 860 F.3d at 258,

and thereby “sufficiently put in issue the questions of official justification and immunity” such that removal

was therefore proper under the FORS, Willingham, 395 U.S. at 409. Plaintiff's motion to remand must

accordingly be denied.

b. Substitution

Because the court concludes that removal was proper pursuant to the FORS, rather than the Westfall

Act, the next question is whether the Government’s substitution for Hermann is proper, since the only basis

provided by the Government for the substitution is the Westfall Act. [see DE-2 (invoking 28 U.S.C.

§ 2679)]

Although the Government’s amended notice of removal invokes 28 U.S.C. § 2679(d)(2) specifically

[DE-20], the Attorney General’s certification and substitution invoked 28 U.S.C. § 2679 more generally

[DE-2]. 28 U.S.C. § 2679(d)(1) sets forth as follows:

Upon certification by the Attorney General that the defendant employee 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 claim in a

United States district court shall be deemed an action against the United States

under the provisions of this title and all references thereto, and the United States

shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1) accordingly allows the Government to substitute itself for a federal employee in a

lawsuit already in federal court—like this case is by virtue of proper FORS removal, see supra Section

II(a}—when the Attorney General certifies that the employee was acting within the scope of his federal

employment at the relevant time.

Plaintiff has not contested the Government’s scope-of-employment certification with any evidence

that persuades the court that Hermann acted outside of the scope of his employment. Instead, Plaintiff relies

upon: (1) affidavits of her colleagues tending to confirm Plaintiff's allegations of workplace misconduct

[DE-15-1; DE-15-2]; and (2) conclusory arguments that, e.g., Hermann’s “conduct is certainly not part of

any of his contract administration duties” [DE-15 at 3]. But Plaintiff's colleagues’ attestations do not

contradict the Government’s certification and Plaintiff's conclusory arguments are insufficient as a matter

of law to rebut the certification. See Doe v. Meron, 929 F.3d 153, 165 (4th Cir. 2019) (“In challenging the

scope of employment certification, a plaintiff must prove by a preponderance of the evidence that the

defendant was acting outside the scope of his employment. To meet this burden, a plaintiff must present or

forecast specific evidence that contradicts the certification. ... He cannot rely on conclusory allegations

and speculation.” (citations omitted)); see also Wolverton v. United States, No. 96-5224, 1997 U.S. App.

LEXIS 3799, at *7 (6th Cir. Feb. 26, 1997) (unpublished) (“Ms. Wolverton pointed to no specific facts

demonstrating that the actions taken by the defendants were outside the scope of their employment,

however, and the district court therefore acted properly in accepting the Attorney General’s certification.

An employee may obviously engage in improper conduct -- conduct in no way condoned by his employer -

- that is still within the scope of his employment.” (emphasis added)). The Attorney General’s certification

is accordingly accepted as conclusive evidence that Hermann was acting within the scope of his

employment at all relevant times.

The question remains, however, whether Westfall Act substitution is proper where “the claim” seeks

injunctive relief alone, since the Westfall Act is part of the FTCA. The court’s independent research has

uncovered some authority standing for the proposition that substitution is improper where injunctive relief

is sought. See Vanover v. Hantman, 77 F. Supp. 2d 91, 97-98 (D.D.C. 1999) (denying Government’s

motion to substitute with respect to injunctive-relief claim, construing “the claim” in 28 U.S.C. § 2679(d)(1)

as “best understood in reference to the limiting language in” 28 U.S.C. § 2679(b)(1) regarding actions “for

money damages”), aff’d, 38 F. App’x 4, 5 (D.C. Cir. 2002) (unpublished per curiam).

But authority from the Fourth Circuit stands for the proposition that the Government may substitute

itself for its employees in lawsuits seeking injunctive relief concerning their professional actions. In Hendy,

a panel of the Fourth Circuit affirmed the dismissal of a lawsuit seeking a restraining order against a federal

employee that the Government had removed to federal court on the employee’s behalf pursuant to the

FORS. 555 F. App’x at 225-27. And in Doyle-Penne v. Muhammad, No. 99-2101, 2000 U.S. App. LEXIS

18902 (4th Cir. Aug. 4, 2000) (unpublished per curiam), a panel of the Fourth Circuit affirmed the dismissal

of an injunctive-relief claim brought against a federal employee where the Government had: (1) substituted

itself for the employee in a tort lawsuit pursuant to a 28 U.S.C. § 2679(d)(1) scope-of-employment

certification; (2) successfully moved to consolidate the tort action with the action seeking injunctive relief;

and (3) thereafter litigated the injunctive-relief on the employee’s behalf. Jd. at *3-4.

In light of Hendy and Doyle-Penne—and because: (1) Hermann’s interests are aligned with the

Government’s such that substitution causes no prejudice to Hermann; and (2) it makes no meaningful

impact upon the court’s analysis,° such that there is no prejudice to Plaintiff—the court concludes that the

The Supreme Court has said that “[a] suit against an officer of the United States is one against the United States

itself if [1] the decree would operate against the sovereign; or [2] if the judgment sought would expend itself on the

public treasury or domain, or interfere with the public administration; or [3] if the effect of the judgment would be to

restrain the Government from acting, or to compel it to act.” Brown v. GSA, 425 U.S. 820, 826-27 (1976) (internal

quotation marks and citations omitted). The court concludes that the judgment Plaintiff seeks would both:

(1) “interfere with the public administration[,]” because it would prohibit Hermann from executing his office to avoid

being in contact with Plaintiff; and (2) “restrain the Government from acting, or to compel it to act[,]” because ACE

would be required to replace Hermann on the project with another Administrative Contracting Officer. Id. The court

would accordingly follow Brown and construe Plaintiff's complaint as effectively suing the Government even without

the 28 U.S.C. § 2679(d)(1) certification and substitution, meaning that the court’s conclusion regarding the propriety

of substitution has no effect upon its sovereign-immunity analysis. See also Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but

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Government is properly substituted as party defendant in this case.°

c. The Government’s motion to dismiss

Within its memorandum in support of its motion to dismiss, the Government argues, inter alia, that

its sovereign immunity requires dismissal of the complaint. [DE-12]

“It is axiomatic that the United States may not be sued without its consent and that the existence of

consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Plaintiffs

lawsuit is accordingly defeated by sovereign immunity unless the Government has consented to being sued

in this fashion by waiving the immunity. The Supreme Court has said:

Waivers of the Government’s sovereign immunity, to be effective, must be

unequivocally expressed. ... [T]he traditional principle [is] that the Government’s

consent to be sued must be construed strictly in favor of the sovereign, and not

enlarged beyond what the language requires[.]

United States v. Nordic Vill. Inc., 503 U.S. 30, 33-34 (1992) (internal quotation marks, ellipsis, and citations

omitted).

The only purported waiver identified by Plaintiff in response to the Government’s motion is 5 U.S.C.

§ 702, which Plaintiff invokes in cursory fashion in a footnote asking the court in the alternative for leave

to amend or replead. [DE-16 at 5 n.2 (“[A] waiver of immunity exists for non-monetary claims alleging

that an officer acted, or failed to act, in an official capacity or under color of legal authority.”)] 5 U.S.C.

rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.” (internal

citation omitted)).

® The court’s conclusion applies equally with respect to the propriety of the Government’s removal of the suit on

Hermann’s behalf pursuant to the FORS. See Hendy, 555 F. App’x at 224 (“The United States government, on behalf

of Bello, removed the suit to federal court under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, before

the hearing for a final peace order.” (emphasis added)).

11

§ 702, which is part of the Administrative Procedure Act, 5 U.S.C. § 1001 et seg. (the “APA”), sets forth

in relevant part as follows:

A person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to

judicial review thereof. An action in a court of the United States seeking relief

other than money damages and stating a claim that an agency or an officer or

employee thereof acted or failed to act in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be denied on the ground that it is

against the United States or that the United States is an indispensable party.

The Supreme Court has interpreted 5 U.S.C. § 702 as allowing an individual to sue federal agencies and

their officers for non-monetary relief in the absence of another statutory source of subject-matter

jurisdiction—and thus as implicitly effecting a waiver of the Government’s sovereign immunity for such

claims—but only where the plaintiff seeks to challenge final agency action. See Lujan, 497 U.S. at 882

person claiming a right to sue [under 5 U.S.C. § 702] must identify some ‘agency action’ that affects

him in the specified fashion ... When, as here, review is sought not pursuant to specific authorization in

the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in

question must be ‘final agency action.””).

A case from the Fourth Circuit demonstrates why Plaintiff has not challenged any final agency

action, and thus why 5 U.S.C. § 702 does not waive the Government’s sovereign immunity in this case. In

Village of Bald Head Island v. United States Army Corps of Engineers, 714 F.3d 186 (4th Cir. 2013) (“Bald

Head IP’), the Fourth Circuit affirmed a judgment from this court that dismissed, for lack of subject-matter

jurisdiction, a challenge to certain actions allegedly undertaken by ACE in implementing a dredging project

near Wilmington. /d. at 197. Below, Judge Boyle held that the plaintiff had not challenged any final agency

action that is subject to judicial review under the APA, and concluded that it was therefore “without

jurisdiction to consider Plaintiff's APA claims.” Vill. of Bald Head Island v. United States Army Corps of

Eng’rs, 833 F. Supp. 2d 524, 533-34 (E.D.N.C. 2011) (noting that “[wJhile ‘action’ has been interpreted to

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mean comprehensively every manner in which an agency may exercise its power, it is only those actions

that are final, and thus mark the consummation of the agency’s decisionmaking process that are subject to

judicial review” (internal quotation marks and citations omitted)). On appeal, the plaintiff-appellant argued

that the district court had erred in concluding that the challenged actions did not constitute final agency

actions, but the Fourth Circuit disagreed:

The Supreme Court has held that as a general matter, two conditions must be

satisfied for agency action to be final. First, the action must mark the

consummation of the agency’s decisionmaking process—it must not be of a merely

tentative or interlocutory nature. And second, the action must be one by which

rights or obligations have been determined or from which legal consequences will

flow. Here, the Corps made a final determination for purposes of the APA when it

announced formal approval of the revised project in September 2000. That

approval, not the Corps’ subsequent activities in carrying it out, was the final

agency action. Thus, in the context of this case, ‘project implementation’ is neither

‘agency action’ nor ‘final’ agency action subject to judicial review under the APA.

Bald Head IT, 714 F.3d at 194-95 (emphasis added) (internal quotation marks, brackets, and citations

omitted).

At bottom, Plaintiff complains regarding how ACE, through Hermann, is implementing the

construction project on which Leebcor, through Plaintiff, works. [see DE-1-1 (Plaintiffs complaint

alleging that Hermann “oversees [her] work and directs [her] duties on the job site” and describing alleged

workplace misconduct); DE-15 at 3 (Plaintiff's memorandum in support of her motion to remand stating

that “Plaintiff is a female employee of Leebcor Services, a government contractor. □□□ Defendant Hermann

is the Administrative Contracting Officer that oversees her work and directs her duties”); DE-21 (amended

notice of removal providing additional details regarding project)] Specifically, Plaintiff alleges that

Hermann yells and makes threatening gestures at Plaintiff during and after meetings regarding the project.

[see DE-1-1 at 5] While Hermann’s conduct may have been inappropriate, the Bald Head II court made

clear that acts undertaken by federal agencies and their officers to implement federal projects are not final

13

agency actions within the meaning of the APA, and that lawsuits seeking to enjoin such acts cannot be

brought under the APA. 714 F.3d at 194-95 (“[Bly challenging the Corps’ ongoing real world physical

actions, even at a localized level, the Village is essentially demanding a general judicial review of the Corps’

day-to-day operations in maintaining the channel, the type of review the Supreme Court has explicitly held

the APA does not authorize.” (internal quotation marks, brackets, and citations omitted)). The court follows

Bald Head II in concluding that Plaintiff (1) has failed to allege any final agency action and therefore

(2) cannot rely upon 5 U.S.C. § 702 to bypass the Government’s sovereign-immunity defense.

The court accordingly concludes that it lacks subject-matter jurisdiction over Plaintiff's complaint,

which must be dismissed pursuant to Rule 12(b)(1).

II. Conclusion

For the foregoing reasons, Plaintiffs motion to remand is DENIED, the Government’s motion to

dismiss is GRANTED, and the Clerk of Court is instructed to close the case.

SO ORDERED this the _/ (ie dayof J Uae 2021.

x, tose! E (Vgeus Te

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE

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