May the federal government be sued in state court on a Title VII claim? Remarkably, the statute contains no provision for exclusive federal jurisdiction over such claims, and the Fourth Circuit splits 2-1 over whether there is concurrent jurisdiction.
Bullock v. Napolitano, No. 10-1222 (4th Cir. Jan. 23, 2012): The federal sector provision of Title VII, 42 U.S.C. § 2000e-16, states that a federal employee “may file a civil action as provided in section 2000e-5 of this title.” 42 U.S.C. § 2000e-5 then states that “[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter.” 42 U.S.C. § 2000e-5(f)(3). The Supreme Court has recognized that the jurisdictional provision above grants concurrent jurisdiction to state courts over Title VII claims. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990).
When an employee in Homeland Security filed his race discrimination claim in North Carolina state court, the agency first removed the claim to federal court. It then successfully moved to dismiss the claim in federal district court on grounds of sovereign immunity: because the state court lacked subject-matter jurisdiction, and “because the removal process itself did not create jurisdiction in federal court, the federal court likewise did not have subject-matter jurisdiction under the doctrine of derivative jurisdiction.”
The Fourth Circuit affirms. The panel majority holds that Yellow Freight System may apply only to non-federal-sector claims because the federal government never waived its sovereign immunity from suit in state court: “the government contends that the presumption of concurrent state jurisdiction cannot effect an implied waiver of sovereign immunity because any waiver must be unequivocally expressed in a statutory provision and strictly construed in favor of the United States.”
The panel majority finds determinative the absence of express language conferring jurisdiction on state courts for such claims against the U.S.:
“In this case, Congress waived sovereign immunity for Title VII suits brought by federal employees against the United States, but it explicitly provided for jurisdiction only in federal courts. Nowhere in the language of the statutory authorization is there a waiver as to suits that otherwise might be brought in state courts.”
Dissenting, Judge Gregory interprets Yellow Freight System to tilt in the direction of permitting concurrent jurisdiction:
“While Yellow Freight involved a Title VII action against a private employer, and the majority understandably seeks to distinguish the decision on that ground, the jurisdictional provision it points to today as allegedly providing exclusive federal court jurisdiction to adjudicate claims against a federal employer is the very same jurisdictional provision the unanimous Court construed in Yellow Freight to conclude that Congress did not limit jurisdiction to federal courts; that is, § 2000e-5(f)(3). . . . It cannot be that the same provision has one meaning for private sector employees and another for federal employees where Congress expressly waived sovereign immunity and provided that a federal employee may file a civil action in the same manner as private sector employees.
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“In sum, a unanimous Supreme Court has unequivocally stated § 2000e-(f)(3) does not give federal courts exclusive jurisdiction nor does it foreclose the possibility of pursuing a Title VII remedy in state court. Because a private sector litigant may file a Title VII claim in state court and 42 U.S.C. § 2000e-16(c) provides that a federal employee may file a civil action in the same manner as private sector employees, so too can a public sector litigant file a Title VII action in state court. Nothing in the text of Title VII itself, the Supreme Court’s interpretation of that text in Yellow Freight, or our time-horned system of dual sovereignty indicates otherwise.”