Petition for Writ of Certiorari — Abram J. Harris, Petitioner v. Department of Transportation, Federal Motor Carrier Safety Administration, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the District of

Columbia Circuit (December 6, 2024) ...........00. la

Concurring Opinion of Judge Henderson........ 14a

Memorandum Opinion, U.S. District Court for

the District of Columbia (March 13, 2023)...... 20a

Order Granting Motion to Dismiss, U.S. District

Court for the District of Columbia

(March 18, 2028)..........cccccessscssssessecesecseesseceeees 3la

REHEARING/RECONSIDERATION ORDERS

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the District of

Columbia Circuit (January 2, 2025)... 33a

Memorandum Order Denying Amended Motion

for Reconsideration, U.S. District Court for

the District of Columbia (April 27, 2028)........ 35a

App.la

OPINION, U.S. COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

(DECEMBER 6, 2024)

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

ABRAM J. HARRIS,

Appellant,

Vv.

U.S. DEPARTMENT OF TRANSPORTATION

FMCSA AND UNITED STATES OF AMERICA,

Appellees.

No. 23-5091

Appeal from the United States District Court

for the District of Columbia (No. 1:22-cv-02383)

Before: HENDERSON and CHILDS, Circuit Judges,

and GINSBURG, Senior Circuit Judge.

KAREN LECRAFT HENDERSON, Circuit Judge:

Abram J. Harris sued the Federal Motor Carrier

Safety Administration (FMCSA) of the U.S. Department

of Transportation (DOT) for fraud and abuse of process

in the D.C. Superior Court. That court dismissed his

suit sua sponte, Harris appealed to the D.C. Court of

Appeals and DOT thereafter removed the case to federal court. As detailed below, we conclude that under

App.2a

28 U.S.C. § 1442(a) a federal defendant may remove a

case from state appellate court to federal district court

and that Harris has forfeited any arguments as to

procedural defects in removal by neither objecting in

district court nor moving for remand. Harris also

forfeited any arguments that the district court erred

in dismissing his case for lack of jurisdiction and failure to state a claim by failing to raise them in his

briefs. Accordingly, we affirm the district court’s

dismissal.

I. Background

Harris owns a commercial motor carrier business

and brought a pro se suit against the DOT in the D.C.

Superior Court on May 3, 2022,1 alleging fraud and

abuse of process.2 Over two months later, on July 22,

noting that DOT had not yet been served, the Superior

Court sua sponte dismissed Harris’s case for failure to

state a claim upon which relief can be granted. A. 26-

28. Harris appealed to the D.C. Court of Appeals three

days later. On August 11, DOT filed a notice of removal

in both the district court and the D.C. Superior

Court.3 DOT waited more than a month, however,

1 All dates occur in 2022 unless otherwise noted.

2 Harris’s complaint states that he hired a female employee

who was also working for the FMCSA and that, after their

working relationship soured, she turned the FMCSA against

him. He also advances statutory and ethics violation claims.

3 A federal agency defendant may remove a civil action begun in

state court to the district court for the district and division where

the state court case is pending. See 28 U.S.C. § 1442(a). The

defendant must file in district court a notice of removal within 30

days of receiving the complaint, through service or otherwise. See

id. §§ 1446(a), 1446(b)(1).

App.3a

before it filed a notice of the removal in the D.C. Court

of Appeals on September 15.4

Harris claims that he effected service on May 16,

supporting that assertion with several affidavits.

Appellant’s Br. 2, 8. The first affidavit states that

Harris spoke by telephone with an employee at the

D.C. Attorney General’s office on June 21. A. 33. The

second affidavit references an email exchange attached

to Harris’s June 2 motion for default judgment and

alleges that the exchange constituted DOT’s “acknowledge[ment]” of the lawsuit. A. 37. In fact, the email

exchange shows that on May 24, an employee in

DOT’s Customer Service & Vetting Division told

Harris that she had “submitted [his] information to

the parties involved” so they could “respond.” A. 58. In

his memorandum in support of his default judgment

motion, Harris also claims that he served the D.C.

Mayor and DOT by certified mail on May 16. A. 55.

DOT’s notice of removal filed in district court

states that the U.S. Attorney’s Office for the District

of Columbia was “served” with a copy of the complaint

on July 12, A. 18, and its notice of removal filed in the

D.C. Court of Appeals states that the Superior Court

dismissed the case “[a]fter service,” Appellee’s Br.

Add. 6. DOT did not raise failure to properly serve as a

defense in district court. On appeal, however, DOT

argues that the U.S. Attorney’s Office simply received

a copy of the complaint on July 12, but had yet to be

properly served when the Superior Court dismissed

the case. Appellee’s Br. 3, 19.

4 28 U.S.C. § 1446(d) requires the defendant to “promptly” notify

in writing all adverse parties and the state court from which the

case is removed once it files the notice of removal.

App.4a

Once his case was removed to district court,

Harris amended his complaint to add Assistant U.S.

Attorney Stephanie Johnson—representing DOT—as

a defendant. Harris never objected to removal nor

sought remand to Superior Court. Harris then filed an

assortment of motions and, on November 21, DOT

moved to dismiss the complaint. After a series of

back-and-forth filings, the district court eventually

dismissed the case on March 138, 2023. Harris v. Dep’t

of Transp., No. 22-cv-2383, 2023 WL 2477968 (D.D.C.

Mar. 13, 2023). The district court concluded that it

lacked jurisdiction because Harris’s claims fell outside

the Federal Tort Claims Act’s limited waiver of

sovereign immunity and because Harris had failed to

exhaust administrative remedies; alternatively, it held

that, even if there were jurisdiction, Harris had failed

to state a claim. Jd. at *1. Harris timely appealed as

to DOT but not Johnson.

The district court had jurisdiction to determine

whether federal question jurisdiction under 28 U.S.C.

§ 13831 extends to a suit removed to district court

under 28 U.S.C. § 1442(a). See, e.g., United States v.

United Mine Workers of Am., 330 U.S. 258, 291-92

(1947). Our jurisdiction to review the district court’s

dismissal is pursuant to 28 U.S.C. § 1291.

We review de novo a dismissal grant, liberally

construing a pro se plaintiffs allegations of fact and

examining the entire record outside the pleadings. See

Abdelfattah v. Dep’t of Homeland Sec., 787 F.3d 524,

529, 532-33 (D.C. Cir. 2015).5

5 We appointed Jeffrey S. Beelaert as amicus curiae to brief

whether under 28 U.S.C. § 1442(a) a federal defendant may remove

a case from state appellate court to federal district court. He has

App.5a

II. Analysis

A.

Harris argues that a case may not be removed

from a state appellate court to a federal district court

under section 1442(a) because the case must be

“pending” in the state trial court at the time of removal.

Appellant’s Br. 4-7. He is wrong.

Section 1442(a) is to be liberally construed in

light of its purpose. “Congress has decided that federal

officers, and indeed the Federal Government itself, require the protection of a federal forum. This policy

should not be frustrated by a narrow, grudging interpretation” of the statute. Willingham v. Morgan, 395

U.S. 402, 407 (1969). No statutory language expressly

requires a case removed under section 1442(a)(1) to be

pending in the court in which it commenced. Instead,

there are two preconditions to removal, each marked

by the word “that.” As relevant here, the removed

action must be one (1) “that is commenced” in state

court and (2) “that is against or directed to” a U.S.

agency. 28 U.S.C. § 1442(a)(1) (emphases added).

By contrast, “pending” serves as a geographic limitation on the district court to which the case may be

removed. Under section 1442(a), a case may be removed

only “to the district court of the United States for the

district and division embracing the place wherein it is

pending.” Id. § 1442(a) (emphasis added). Granted, a

case must still be pending somewhere in the state

court system to be removable. See, e.g., Oviedo v.

Hallbauer, 655 F.3d 419, 422-23 (5th Cir. 2011)

more than ably discharged his duties and we thank him for his

service.

App.6a

(holding that removal under section 1442(a) was not

available once the state court judgment was no longer

subject either to modification by the trial court or to

appellate review and discussing cases); Ristuccia v.

Adams, 406 F.2d 1257, 1258 (9th Cir. 1969) (holding

that removal under sections 1441 and 1443 was not

available after the California Supreme Court denied

review).

Nevertheless, a case need not be pending in the

court in which it originated. We agree with the

Seventh Circuit’s interpretation of the general removal

statute-28 U.S.C. § 1441(a)—in Yassan v. JP. Morgan

Chase & Co.: “a state civil action is ‘pending’... and

therefore removable, as long as the parties are still

actively contesting the case in the state court system.”

708 F.3d 963, 969 (7th Cir. 2013). “So long as the

parties continue to contest the case in the state court

system—whether they are contesting the case in the

state trial court or on appeal—the case has not

‘achieved final resolution.” Id. (quoting Carey v.

Saffold, 536 U.S. 214, 220 (2002) (interpreting the

plain meaning of the word “pending” in another

context)). No more is required.

This reading fits with section 1442(a)’s purpose to

“ensure a federal forum in any case where a federal

official is entitled to raise a defense arising out of his

official duties.” Arizona v. Manypenny, 451 U.S. 232,

241 (1981). That purpose would be frustrated by

barring removal from state appellate courts in circumstances similar to these. It would be odd if a federal

agency or officer lost the opportunity to remove to a

federal forum simply because the state trial court dismissed the case and the plaintiff appealed before the federal agency or officer was required to remove. It would

App.7a

be especially strange to lose that opportunity before

the government had even been served.6 Here, the

Superior Court dismissed the case sua sponte on July

22, before DOT was properly served, and Harris

appealed just three days later. Even if DOT had been

properly served on July 12, it had another 20 days in

which to remove after the Superior Court’s July 22

dismissal. See 28 U.S.C. § 1446(b) (authorizing 30 days

to remove after service).7

6 Notice of removal must generally be filed with the district court

within 30 days of being served, although the clock may start later

if the defendant has not yet received the complaint. 28 U.S.C.

§ 1446(b)(1); see also Murphy Bros. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 354 (1999) (A “defendant’s time to remove is

triggered by simultaneous service of the summons and complaint,

or receipt of the complaint, ‘through service or otherwise,’

after and apart from service of the summons, but not by mere

receipt of the complaint unattended by any formal service.”).

7 As the Superior Court noted in its sua sponte dismissal, it does

not appear from the record that DOT was ever properly served.

Under Superior Court rules, a plaintiff must do two things to

properly serve a federal agency defendant. First, the plaintiff

must serve the United States by (A)(i) delivering a copy of the

summons and complaint to the U.S. Attorney for the District of

Columbia or his designee or (ii) sending a copy of the summons

and complaint by registered or certified mail to the civil-process

clerk at the U.S. Attorney’s office and (B) sending a copy of the

summons and complaint by registered or certified mail to the

U.S. Attorney General. D.C. Super. Ct. R. Civ. P. 4(i)(1). Second,

the plaintiff must serve the federal agency by sending a copy of

the summons and complaint by registered or certified mail to the

agency. D.C. Super. Ct. R. Civ. P. 4@)(2).

There is no indication that Harris ever served the U.S. Attorney

General and service made by a party is in any case invalid.

Harris’s first affidavit to prove service—regarding a telephone

call with an employee at the D.C. Attorney General’s office—

shows only that he mistakenly attempted to serve the D.C. Attor-

App.8a

A contrary reading could enable a plaintiff to

thwart section 1442(a)(1) by swiftly appealing a state

court dismissal before the federal government had a

reasonable chance to remove. “It is unlikely that Congress, animated by an approximately 200-year-old

concern that the contours of federal power be determined by federal courts, would have intended such an

obvious end-around.” Rodas v. Seidlin, 656 F.3d 610,

618 (7th Cir. 2011) (holding that removal under

section 1442(a)(1) was proper although the United

States was added as a defendant only after the case

had “commenced” in state court because a contrary

reading would allow a plaintiff to evade section

1442(a)(1) by filing suit against private parties and

later adding the federal government).

This interpretation also aligns with other cases

that have addressed removal from a state appellate

court to a federal district court. Under the Financial

Institutions Reform, Recovery and Enforcement Act

(FIRREA), the Federal Deposit Insurance Corporation

(FDIC) “may... remove any action, suit, or proceeding

ney General instead of the U.S. Attorney General. Harris’s

second affidavit merely proves that he exchanged emails with a

customer service representative at DOT who forwarded his information internally. Harris’s memorandum in support of his summary judgment motion shows that he incorrectly attempted to

serve the D.C. mayor instead of the United States and incorrectly

attempted to personally serve DOT. The U.S. Attorney for the

District of Columbia did receive a copy of the complaint on July

12, 2022, but the other requirements of service appear never to

have been satisfied.

DOT's mistaken suggestion in its notices of removal that it had

been served arguably operates as a waiver of the defense of lack

of service but in any event the district court noted that DOT did

not raise failure to properly serve as a defense.

App.9a

from a State court to the appropriate United States

district court.” 12 U.S.C. § 1819(b)(2)(B). In FDIC v.

Meyerland Co. (In re Meyerland Co.), 960 F.2d 512,

516 (5th Cir. 1992), the Fifth Circuit held that removal

was proper under section 1819(b)(2)(B) because the plain

language of the statute “does not limit removable

actions to those that have not yet reached a state trial

court judgment, nor does it limit removable actions to

those that come to the federal courts from a specific

state court.” The Meyerland court also highlighted

the contrast between FIRREA’s broad “state court”

language and its specific “United States district court”

language as support for allowing removal from state

appellate court as well as trial court. 960 F.2d at 516-

17. Finally, the court determined that the “significant

factor” is that “state appellate proceedings had not yet

been exhausted when removal was effected.” Id. at 517.

Other circuits have followed the reasoning of

Meyerland. See, e.g., Resol. Tr. Corp. v. BVS Dev., Inc.,

42 F.3d 1206, 1211 (9th Cir. 1994) (collecting cases

applying either the FDIC’s or the Resolution Trust

Corporation’s (RTC) removal statute). But see Victoria

Palms Resort Inc. v. City of Donna, 234 F. App’x 179

(5th Cir. 2007) (holding that Meyerland does not support removing non-FIRREA cases on appeal in the

state court system to federal court).

Finally, lower courts that have specifically

addressed section 1442(a)(1) have interpreted the

statute to allow removal after final judgment at the

state trial court level. See Hadley-Memorial Hosp. v.

Kynard, 981 F. Supp. 690, 692 (D.D.C. 1997) (holding

that the Department of Defense could remove a case

under section 1442(a) after the state trial court had

granted a motion to compel compliance with a writ of

App.10a

attachment because the plain language and purpose

of section 1442(a) supported allowing removal); Holmes

v. AC&S, Inc., 388 F. Supp. 2d 663, 671-72 (E.D. Va.

2004) (holding that Westinghouse, as a person acting

under a federal officer, could remove a case under

section 1442(a) after final judgment in the state trial

court following Hadley-Memorial and Resolution Trust

Corp. v. Allen, 16 F.3d 568 (4th Cir. 1994)).

Consistent with section 1442(a)’s text and purpose

as well as persuasive caselaw, we conclude that a federal defendant may remove a case to federal district

court from state appellate court.

B.

On appeal, Harris argues that removal was

defective because DOT did not comply with the deadlines for removal set out in section 1446. See Appellant’s Br. 7-8. But Harris forfeited this argument because untimeliness of removal is a procedural defect

and he failed to object to removal or move for remand

below.

Under section 1447(c):

A motion to remand the case on the basis of

any defect other than lack of subject matter

jurisdiction must be made within 30 days

after the filing of the notice of removal under

section 1446(a). If at any time before final

judgment it appears that the district court

lacks subject matter jurisdiction, the case

shall be remanded.

28 U.S.C. §1447(c). This provision distinguishes

procedural defects in removal in the first sentence

from jurisdictional requirements in the second sentence.

App.1lla

See Corona-Contreras v. Gruel, 857 F.3d 1025, 1028

(9th Cir. 2017). Procedural defects in removal do not

affect jurisdiction and therefore may be waived or

forfeited. See Grubbs v. Gen. Elec. Credit Corp., 405

U.S. 699, 702-03 (1972).

We conclude that the timeliness of removal under

section 1446 is a procedural claims-processing rule

and is not jurisdictional. See Wasserman v. Rodacker,

557 F.3d 635, 638 n.2 (D.C. Cir. 2009) (“[T]he 30-day

deadline of 28 U.S.C. § 1446... is not jurisdictional.

...”). Courts must “treat a procedural requirement as

jurisdictional only if Congress ‘clearly states’ that it is.”

Harrow v. Dep't of Def,, 601 U.S. 480, 484 (2024)

(quoting Boechler, P.C. v. Comm f of Internal

Revenue, 596 U.S. 199, 208 (2022)). This sets a “high

bar” and “most time bars are nonjurisdictional .

.. whether or not the bar is framed in mandatory

terms.” Jd. (citations omitted). A “run-of-the-mill ‘filing

deadline’ does not “demarcate a court’s power.” Id.

(quoting Henderson v. Shinseki, 562 U.S. 428, 435

(2011)). “What matters instead’ is whether a time bar

speaks to a court’s authority to hear a case.” Id. at 485

(quoting United States v. Kwai Fun Wong, 575 U.S.

402, 411 (2015).

Far from stating that the timeliness of removal is

jurisdictional, section 1447 instead expressly distinguishes between “subject matter jurisdiction” and “any

[other] defect.” 28 U.S.C. § 1447(c). Reading untimeliness of removal to be a procedural and not jurisdictional defect also aligns with how other circuits have

interpreted this issue and similar removal defects. See

Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212

(9th Cir. 1980) (holding that section 1446’s removal

deadline is a mandatory claims-processing rule and

App.12a

that a party may waive objections to untimely removal

by failure to timely object); cf. Smith v. Mylan Inc.,

761 F.3d 1042, 1045-46 (9th Cir. 2014) (collecting

circuit cases holding that the one-year time limit on

removal then in section 1446(b) and now in section

1446(c) is a procedural requirement that can be forfeited). Indeed, Harris concedes that the timeliness of

removal under section 1446 is a procedural requirement. Appellant’s Br. 8.

Harris has forfeited any alleged procedural defect

argument arising from untimely removal because,

instead of objecting or moving for remand below, he

availed himself of the district court’s jurisdiction by

amending his complaint and affirmatively seeking

relief in that court. See Busby v. Capital One, NA., 841

F. Supp. 2d 49, 53 (D.D.C. 2012) (“A plaintiff may

waive [] objections to any procedural defect in removal

by affirmatively litigating in federal court”); In re

Moore, 209 U.S. 490, 496 (1908) (holding that a plaintiff consented to district court jurisdiction by failing to

move for remand, instead filing an amended petition

and agreeing to stipulations), abrogated on other

grounds by Ex parte Harding, 219 U.S. 363 (1911).

For the same reason, Harris has forfeited arguments as to any procedural error by the district court

in managing the case after removal, even if they were

properly presented on appeal. See Appellant’s Br. 5

(claiming that “the district court had nothing to

dismiss”); Reply Br. 8 (claiming that “all the district

court could do was enter the judgment of the [D.C.]

Superior Court as its own”).

Finally, Harris has forfeited any challenge to the

district court’s dismissal of his claims for lack of jurisdiction or, alternatively, for failure to state a claim be-

App.13a

cause he did not mount such a challenge in his

opening brief or even reply brief. See TIG Ins. v.

Republic of Argentina, 110 F.4th 221, 239 (D.C. Cir.

2024) (“[B]ecause [appellant] did not raise this argument in [his] opening brief, it is forfeited.”).

kaeA*

For the foregoing reasons, we affirm the district

court’s dismissal.

So ordered.

App.14a

CONCURRING OPINION OF

JUDGE HENDERSON

KAREN LECRAFT HENDERSON, Circuit Judge Concurring

Although Harris forfeited any arguments as to

procedural defects in removal here, I offer my view of

how to treat litigation in the “peculiar procedural

posture” of removal from a state appellate court to a

federal district court. Resol. Tr. Corp. v. Allen, 16 F.3d

568, 574 (4th Cir. 1994). First, the federal defendant

must “[p]romptly” file a copy of the notice of removal

in the state appellate court—not the state trial court

—because the case is “pending” at the appellate level.

28 U.S.C. §§ 1446(a), (d). Second, upon removal the

district judge should adopt the state court’s judgment

as its own and then proceed as normal to consider its

post-judgment alternatives.

A.

28 U.S.C. § 1446 lays out the two steps required

to effect removal. First, the defendant must file a

notice of removal stating the grounds for removal in

the district court “for the district and division within

which such action is pending.” 28 U.S.C. § 1446(a).

That notice must generally be filed within 30 days of

being served, although the clock may start later if the

defendant has not yet received the complaint. 28 U.S.C.

§ 1446(b)(1); see also Murphy Bros. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 354 (1999) (A “defendant’s

time to remove is triggered by simultaneous service of

the summons and complaint, or receipt of the complaint,

‘through service or otherwise,’ after and apart from

service of the summons, but not by mere receipt of the

complaint unattended by any formal service.”). Second,

App.15a

to “effect the removal” the defendant must “[p]romptly”

after filing the notice of removal with the district court

notify all adverse parties in writing and provide a copy

of the notice of removal to the clerk of the relevant

state court. 28 U.S.C. § 1446(d).

Courts have taken different approaches on when

a federal court gains and a state court loses jurisdiction

under the removal process. See 14C Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure

§ 3736 (Rev. 4th ed. June 2024). Some courts have held

that removal is effective from filing the notice of removal

in the district court, with the second step vesting

jurisdiction in the district court as of the earlier date.

Id. Others have held that the state court and federal

court have concurrent jurisdiction between the first

and second steps. Jd. A third set of courts has held

that removal is not effective—and the federal court

has not gained jurisdiction—until both steps are

complete. Id. I believe the second approach makes the

most sense.

The plain terms of the statute provide that

removal is “effect[ed]” only once prompt notice of the

notice of removal has been provided to all adverse

parties and to the clerk of the relevant state court. 28

U.S.C. § 1446(d). If the Congress had wanted the first

step alone to “effect the removal,” it could have put

that language in section 1446(a) instead of section

1446(d). See Brown v. Gardner, 513 U.S. 115, 120

(1994) (“(W]here Congress includes particular language

in one section of a statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” (quoting Russello v.

United States, 464 U.S. 16, 23 (1983))). As Wright and

App.16a

Miller highlight, the first approach would also mean

that a state court would be retroactively stripped of

jurisdiction despite having received no notice of

removal. 14C Wright & Miller § 3736. Granted, the

second approach presents difficulties in terms of the

extent to which each court would need to give effect to

any decisions of the other court during the period of

concurrent jurisdiction.

However, the last approach would make completing

all the steps to effect removal a jurisdictional and not

procedural requirement. As the Supreme Court has

made clear, courts must “treat a procedural requirement as jurisdictional only if Congress ‘clearly states’

that it is.” Harrow v. Dep’t of Def, 601 U.S. 480, 484

(2024). Moreover, “it is insufficient that a jurisdictional reading is plausible, or even better, than

nonjurisdictional alternatives.” Campaign Legal Ctr.

v. 45Committee, Inc., 118 F.4th 378, 387 (D.C. Cir. 2024)

(quoting MOAC Mall Holdings LLC v. Transform

Holdco LLC, 598 U.S. 288, 297 (2023)). Instead, “a

statutory precondition is jurisdictional only if it

‘purports to govern a court’s adjudicatory capacity’ by

speaking directly to ‘a court’s authority.’ Id. (quoting

MOAC, 598 U.S. at 299).

Section 1446(d) makes no mention of the district

court and neither section 1446(a) nor (d) discusses

jurisdiction. 28 U.S.C. §§ 1446(a), (d). Jurisdictionally,

for a federal officer to remove a case under section

1442(a)(1) the officer must “raise a colorable federal

defense” and “establish that the suit is for an act

under color of office.” Jefferson Cnty. v. Acker, 527 U.S.

423, 431 (1999). For a federal agency to remove under

that provision, it may suffice merely to identify the federal agency without more. See Parker v. Della Rocco,

App.17a

Jr., 252 F.3d 663, 665 n.2 (2d Cir. 2001). Thus, section

1442(a) includes jurisdictional requirements. By contrast, notice to adverse parties and the relevant state

court “appears in a separate provision that ‘does not

speak in jurisdictional terms or refer in any way to the

jurisdiction of the district courts.’ Arbaugh v. Y&H

Corp., 546 U.S. 500, 515 (2006) (quoting Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 394 (1982)). This

does not satisfy the “high bar” for a jurisdictional

requirement. Harrow, 601 U.S. at 484 (quoting United

States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015));

see also Dukes v. South Carolina Ins., 770 F.2d 545,

547 (5th Cir. 1985) (holding that “[flailure to file a

copy of the removal notice with the state court clerk is

a procedural defect, and does not defeat the federal

court’s jurisdiction”).

In the case sub judice, there is no question that

DOT notified both the D.C. Superior Court and the

D.C. Court of Appeals of the notice of removal,

satisfying the procedural requirement of providing

notice to the relevant state court. But DOT did not

provide notice to the D.C. Court of Appeals until September 15, 2022, which was 35 days after DOT filed a

notice of removal in district court. Although DOT provided notice to the D.C. Superior Court on the same

day it filed a notice of removal in district court, the

case was no longer pending in Superior Court.

It would be for the district court to determine

whether—in the particular factual circumstances of a

case—a given delay falls short of the additional

procedural requirement not only to notify the relevant

state court but to do so “[p]romptly.” 28 U.S.C. § 1446

(d); see also Almonte v. Target Corp., 462 F. Supp. 3d

360, 366 (S.D.N.Y. 2020) (concluding that a 34-day

App.18a

delay between filing a notice of removal in district

court and a notice of that notice in state court was sufficiently prompt because the plaintiff had received

notice with only a one-day delay, the state court had

taken no action in the meantime and the plaintiff

asserted no prejudice from any delay).

Here, Harris forfeited any objections to the

timeliness of DOT’s removal by not objecting or moving

for remand below.

B.

“After removal, the federal court takes the case

up where the State court left it off’ Granny Goose

Foods, Inc. v. Local No. 70, Bhd. of Teamsters, 415

U.S. 423, 436 (1974). In other words, once the district

court has gained jurisdiction, it proceeds from the

procedural stage of the case in the state court system.

In Allen, the Fourth Circuit laid out three approaches

different circuits have taken for post-removal

proceedings and then adopted a fourth, hybrid

approach. 16 F.3d 568, 572-73. Under the first

approach, the district court takes the state court judgment as it finds it, prepares the record as required for

appeal and forwards the case to the appellate court for

review. Id. at 572 (citing FDIC v. Meyerland Co. (In re

Meyerland Co.), 960 F.2d 512, 520 (5th Cir. 1992)); ef.

FDIC v. Keating, 12 F.3d 314, 317 & n.4 (1st Cir. 1993)

(following Meyerland but assuming without deciding

that a district court could entertain timely motions for

post-judgment relief). The second approach requires

the party seeking appeal to move in the district court

under Rule 59 to modify or vacate the judgment, after

which the party may appeal. Allen, 16 F.3d at 573

(citing Jackson v. Am. Savings Mortg. Corp., 924 F.2d

App.19a

195, 199 & n.9 (11th Cir. 1991)). Under the third

approach, parties may file Rule 59 motions and, if they

fail to do so or the district court denies the motions, the

district court adopts the state court judgment as its

own, after which parties follow the regular procedural

rules applicable to a district court judgment. Id.

(citing Resol. Tr. Corp. v. Nernberg, 3 F.3d 62, 68-69

(8d Cir. 1993)). Allen’s fourth approach provides for the

district court’s immediate adoption of the state court

judgment as its own upon removal and then the ordinary

rules on post judgment remedies are followed. Id.

The fourth approach is most faithful to Granny

Goose, giving effect to the state court judgment while

serving the interests of judicial economy by allowing

parties to file post-judgment motions to develop the

record before any federal appeal. It is similar to the

third approach but avoids the scenario in which

parties file Rule 59 motions both before and after the

district court adopts the state court judgment as its

own. Here, however, the district court proceeded as if

there had been no state court judgment—allowing

Harris to amend his complaint and both parties to file

prejudgment motions—which I believe was error.

In any event, Harris forfeited any objections to

this procedural error by amending his complaint and

seeking relief in district court, effectively gaining a

second review of his claims.

App.20a

MEMORANDUM OPINION, U.S. DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

(MARCH 13, 2023)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABRAM J. HARRIS,

Plaintiff,

Vv.

DEPARTMENT OF TRANSPORTATION, ET AL.,

Defendants.

Case No. 1 :22-cv-2383 (TNM)

Before: Trevor N. MCFADDEN, U.S.D.J.

ABRAM J. HARRIS,

Plaintiff,

Vv.

STEPHANIE JOHNSON,

Defendant.

Case No. 1 :22-cv-3154 (TNM)

MEMORANDUM OPINION

App.21la

The owner of a trucking company hired a woman

who also worked for a federal agency that oversees

trucking companies. The owner’s relationship with his

new employee soon soured. His relationship with the

federal agency did too. The owner sees those two

incidents as connected; in his view, the woman used

her role at the agency to go after his company. So he

sued the agency for fraud, abuse of process, and a host

of statutory violations.

During litigation, the owner also became convinced

that the agency’s lawyer had lied about him online. So

he added the lawyer to his lawsuit against the agency.

And he later filed a second lawsuit against that lawyer based on the same alleged lie.

The Court lacks jurisdiction over many of the

owner's claims. And the owner fails to state claims for

the rest. So the Court will dismiss both Complaints.

I.

Abram J. Harris has been involved in long-distance

trucking for decades. See Compl. at 3 (Johnson Compl.)

(22-cv-3154), ECF No. 1. In 2019, his business ran into

trouble with the Federal Motor Carrier Safety Administration (FMCSA). See Compl. { 1 (DOT Compl.) (22-

cv-2383), ECF No. 1-2. According to him, he had hired

a woman who was also working for that agency. When

things went south with her, the woman turned FMSCA

against him. Mot. to Seal, Exh. A at 7, ECF No. 32-1.

So he sued FMSCA’s parent agency, the Department

of Transportation, for “[f]raud” and “[a]buse of process.”

DOT Compl. § 1. And he invokes many statutes and

ethics rules as well. See Surreply at 2-4 (DOT Surreply),

ECF No. 25.

App.22a

Harris then amended his Complaint to add claims

against Assistant United States Attorney Stephanie

Johnson, who had been representing DOT. See Am.

Compl. (DOT Am. Compl.), ECF No. 5. In his view, she

had spread lies about him online. Jd. at 4-5.

Months later, Harris filed a second, separate

lawsuit against AUSA Johnson for the same reason.

See generally Johnson Compl. In this Complaint,

Harris says that AUSA Johnson was negligent, defamed

him, and used “insulting words.” Id. at 6-11.

The Government moved to dismiss both cases for

lack of subject matter jurisdiction and failure to state

a claim. See Mot. to Dismiss (DOT MTD), ECF No. 15;

Mot. to Dismiss (Johnson MTD), ECF No. 7. The

Court agrees and will dismiss both Complaints for

lack of jurisdiction and a failure to state any claim.

II.

To defeat the motions to dismiss under Rule

12(b)(1), Harris must show that the Court has jurisdiction. See Georgiades v. Martin-Trigona, 729 F.2d

831, 833 n.4 (D.C. Cir. 1984). When deciding 12(b)(1)

motions, the Court presumes that it lacks jurisdiction.

See Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994). And the Court takes as true all

Harris’s factual allegations and may also consider

other undisputed facts in the record. See Jerome

Stevens Pharms., Inc. v. FDA, 402 F.8d 1249, 1253

(D.C. Cir. 2005).

To defeat the motions to dismiss under Rule

12(b)(6), Harris must state a plausible claim. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That means

he must plead facts “that allow[] the court to draw the

App.23a

reasonable inference that the defendant is liable for

the misconduct alleged.” Jd. The Court takes those

facts as true and draws all reasonable inferences in

Harris’s favor. L. Xia v. Tillerson, 865 F.3d 6438, 649

(D.C. Cir. 2017). But the Court cannot credit legal conclusions dressed up as factual claims. See Iqbal, 556

U.S. at 678.

Harris represents himself, so the Court holds his

Complaints to “less stringent standards” than those

drafted by lawyers. Haines v. Kerner, 404 U.S. 519,

520 (1972). For the same reason, the Court considers

all Harris’s factual claims, including those in his other

filings. Moini v. LeBlanc, 456 F. Supp. 3d 34, 40

(D.D.C. 2020).

III.

All Harris’s claims must be dismissed.

A.

Start with Harris’s common-law claims against

DOT. In his first Complaint, Harris alleges fraud and

abuse of process, and he appears to also claim that

DOT is liable for “negligence, misrepresentation, interference with business relationships,” and “unfair trade

practices.” DOT Compl. at 2, 44. The Court lacks subject matter jurisdiction over these claims. Fed. R. Civ.

P. 12(b)(1). And Harris states no plausible claims

either. Fed. R. Civ. P. 12(b)(6). So they all must be dismissed.

The United States is immune from suit unless it

has waived its sovereign immunity. United States v.

Sherwood, 312 U.S. 584, 586 (1941). So to sue a federal agency, like DOT, Harris must point to a waiver of

App.24a

sovereign immunity. See id. He never does. Instead, he

objects to the Government raising sovereign

immunity as a defense: “Defendant must be on some

type of mind-altering drug if the Defendant thinks

that the Federal Government... can defraud you...

and then yell Sovereign Immunity.” DOT Surreply at

5. That failure to point to a waiver is fatal. See

Georgiades, 729 F.2d at 833 n.4 (“It is the burden of

the party claiming subject matter jurisdiction to demonstrate that it exists.”); see also Gill v. DOJ, 875 F.3d

677, 680 (D.C. Cir. 2017) (affirming dismissal because

plaintiff had named no waiver of sovereign immunity

below).

But even if he had highlighted a waiver, his

common-law claims would still fail. The United States

has waived its sovereign immunity for some torts

under the Federal Tort Claims Act. See 28 U.S.C.

§ 1346(b). But to bring claims under the FTCA, Harris

must have exhausted them first. See 28 U.S.C.

§ 2675(a); see also McNeil v. United States, 508 U.S.

106, 113 (1993) (“The FTCA bars claimants from

bringing suit in federal court until they have exhausted

their administrative remedies.”). And he never says

that he did so. So the Court doubly lacks jurisdiction.

True, Harris may have presented his claims to

DOT when he filed a complaint with DOT’s Inspector

General. See Mot. to Seal, Exh. A at 1-3. But that is

only half the exhaustion battle. Before Harris could

sue, he also needed to either (1) have those claims

“finally denied by the agency in writing” or (2) wait six

months. 28 U.S.C. § 2675(a). There is no evidence that

he meets either requirement. He never says that DOT

denied his claims in writing. And he waited less than

six months to sue. See Mot. to Seal, Exh. A at 1 (com-

App.25a

plaint to DOT Inspector General on March 3, 2022);

DOT Compl. at 2 dawsuit filed on May 3, 2022).

And even if Harris had cleared those hurdles, his

claims would still fail. Most are barred by the FTCA’s

intentional tort exception. See 28 U.S.C. § 2680(h). For

example, the FTCA expressly bars “abuse of process”

and “misrepresentation” claims. Jd. And it bars fraud

claims too. Maxberry v. Dep’t of the Army, Bd. of

Correction of Military Records, 952 F. Supp. 2d 48, 52

(D.D.C. 2013); Williams v. Wilkie, 320 F. Supp. 3d 191,

198 (D.D.C. 2018). Likewise, the FTCA bars his claim

for interference with business relationships. See Art

Metal-U.S.A., Inc. v. United States, 753 F.2d 1151,

1154-55 (D.C. Cir. 1985). So the Court lacks jurisdiction over these claims.

And neither those claims, nor the rest, are pled

with enough clarity to state a plausible claim. Fed. R.

Civ. P. 12(b)(6). For instance, Harris says that DOT

“was so negligent” when it included “another company’s information along with his information” in its

mail to him. DOT Compl. at 22. But the Court fails to

see how that counts as a breach of any duty to Harris,

much less how that harmed him. So the Court will

dismiss all his claims against the agency.

B.

Harris also presses claims against AUSA Johnson

in both cases. He insists that she made a “false filing,”

defamed him, used “insulting words,” and that she

was negligent. DOT Am. Compl. at 4; Johnson Compl.

at 6-11. In support, Harris points to an entry from a

court-tracking website that says, “HARRIS filed an

Other lawsuit against U S DEPARTMENT OF

TRANSPORTATION FMSCA.” DOT Am. Compl., Exh.

App.26a

A at 1, ECF No. 5-1. Harris believes that AUSA

Johnson wrote that about him. And he protests that

the statement is false. But the Court lacks subjectmatter jurisdiction over these claims. See Fed. R. Civ.

P. 12(b)(1). So it must dismiss them.

Under the Westfall Act, federal employees have

“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); 28 U.S.C. § 2679(b)(1). Once the Government certifies that an employee “was acting within

the scope of [her] office or employment at the time of

the incident out of which the claim arose,” then the

United States is substituted in as a defendant. 28 U.S.C.

§ 2679(d)(2). If that happens, then the claims “are

governed by the FTCA.” Jacobs v. Vrobel, 724 F.3d

217, 220 (D.C. Cir. 2013).

Such is the case here. The Government has

certified that AUSA Johnson “was acting within the

scope of her employment... at the time of the alleged

incidents” and thus the United States is substituted

as a defendant in her stead. See Johnson MTD,

Westfall Certification, ECF No. 7-1; 28 U.S.C.

§ 2679(d)(2). As a result, Harris’s claims must satisfy

the FTCA. Vrobel, 724 F.3d at 220. They do not. And

the Court thus lacks subject-matter jurisdiction.

First, Harris failed to exhaust these claims. See

28 U.S.C. § 2675(a). He never says that he presented

them to “the appropriate Federal agency” (here, the

Department of Justice). Id. Nor does he say that DOJ

denied the claims or that he waited six months. Id. So

he is barred from bringing them.

App.27a

Second, even if he had exhausted his claims, they

would still run smack into the FTCA’s intentional tort

exception. See 28 U.S.C. § 2680(h). The FTCA explicitly

bars Harris’s misrepresentation claim. See id. And it

bars his defamation and negligence claims too because

both are based on AUSA Johnson’s alleged misrepresentation.

The intentional tort exception applies to “[a]ny

claim arising out of,” the listed torts, including “misrepresentation.” 28 U.S.C. § 2680(h) (emphasis added).

Because of that, the Court “must scrutinize the

alleged cause of [Harris’s] injury” to see if it stems

from an excluded tort. Kugel v. United States, 947

F.2d 1504, 1507 (D.C. Cir. 1991). Both his negligence

and defamation claims do. At bottom of each, Harris

appears to be alleging that AUSA Johnson posted lies

about him online and that those lies harmed him.

Thus, because both claims arose “out of... misrepresentation,” they are both barred. 28 U.S.C.

§ 2680(h).1 And all these claims must be dismissed

too.

1 These claims have another problem. Harris’s own exhibits

show that AUSA Johnson did not make the statement he

attributes to her. As the Government explains, “the language

Plaintiff quotes comes not from AUSA Johnson herself but from

websites reporting or reflecting the removal of Plaintiffs lawsuit

from Superior Court to federal court. In other words, Plaintiffs

suit is based on how third parties have reported the removal of

Plaintiffs suit to federal court.” Johnson MTD at 2.

That is right. AUSA Johnson’s alleged lies come from a case summary on unicourt.com, “a sophisticated platform that automates

the collection of court data.” Legal Data API, https://unicourt.

com/features/legal-data-api (last visited March 3, 2023). She

never made those statements on the docket in either case. And

App.28a

C.

Harris also cites many statutes and ethical

rules—nearly two dozen. But he again points to no

waiver of sovereign immunity. Plus, most provide no

cause of action. And Harris cannot state claims under

those that do.

Many of Harris’s claims rely on criminal laws

that provide him no cause of action. If a criminal law

offers “no... statutory basis for inferring that a civil

cause of action exists,” then the Court should not imply

one. Lee v. USAID, 859 F.3d 74, 77 (D.C. Cir. 2017).

And Harris’s laws provide no basis for finding a cause

of action. Take 18 U.S.C. § 1515. That provision merely

defines terms used in other provisions. Or consider 18

U.S.C. § 873, which simply criminalizes blackmail.

Neither suggests that Harris has a right to sue under

it. And his other criminal laws fare no better.

The same is true of nearly all Harris’s proffered

civil laws. Usually, civil laws provide no cause of

action, unless they explicitly say so. See Johnson v.

Interstate Mgmt. Co., LLC, 849 F.3d 10938, 1097 (D.C.

Cir. 2017). In some cases, courts will imply a cause of

action if Congress’s intent is clear. Id. at 1097. But

that is rare. Over the last 50 years, “the Supreme

Court has been very hostile to implied causes of action.”

Id.

The Court sees no basis for implying any causes

of action here. The Hatch Act offers no private cause

of action. See Hall v. Clinton, 285 F.3d 74, 83 (D.C.

Cir. 2002). Nor do Harris’s other laws. For example,

thus they must be a quirk of that court-tracking website’s automated

system.

App.29a

19 U.S.C. § 1592 sets forth Customs Service enforcement proceedings for fraud and negligence. And 5

U.S.C. § 7342 governs foreign gifts to government

employees. See Surreply at 4. Nothing about these

provisions suggests a private cause of action.

Other laws offer a private cause of action, but just

not for Harris. He cites 18 U.S.C. § 1514A, which

authorizes retaliation claims against publicly-traded

companies. See DOT Compl. at 47. Yet here, Harris is

suing an agency and an AUSA. Harris also raises the

False Claims Act. See Surreply at 6-7 (citing 31 U.S.C.

§ 3729). But none of his corresponding claims—that

AUSA Johnson defamed him, that the Government

refused to settle, and that the Government “indicate[d]

the state Attorney General” had not been served—

lead to liability under that law. Id. at 7; see also 31

U.S.C. § 3729(a) (setting forth bases for civil liability).

Harris’s claim under RICO fails as well. For one,

such claims are barred by sovereign immunity. See

Bloch v. Exec. Off of the President, 164 F. Supp. 3d

841, 856 (E.D. Va. 2016); Norris v. DOD, No. 96-5326,

1997 WL 362495, at *1 (D.C. Cir. May 5, 1997) (per

curiam) (dismissing RICO claims against federal agency

as barred by sovereign immunity). And even if they

were not, federal agencies cannot be sued under

RICO. See McNeily v. United States, 6 F.3d 343, 350

(5th Cir. 1993) (no RICO claims against federal government). So Harris fails to state a claim.

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