IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
December 17, 2010
ELSIE KELLY, PLAINTIFF,
JACKIE LUGO, DEFENDANT.
The opinion of the court was delivered by: Honorable Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).  For the reasons stated below, the Court grants the motion to dismiss without prejudice.
Plaintiff filed an employment discrimination action against Jackie Lugo, Plaintiff's former supervisor at the United States Postal Service, in the Circuit Court of Cook County, Illinois, on August 20, 2010. [See Ex. A to 3] Defendant removed the case to federal court on September 17, 2010, under 28 U.S.C. § 1442(a).  Defendant filed the instant motion to dismiss the case for lack of subject matter jurisdiction .*fn1 Defendant submits that the derivative jurisdiction rule prevents this Court from hearing Plaintiff's case -- which arises out of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Civil Service Reform Act ("CSRA") -- since the state court in which Plaintiff initially filed the suit lacked jurisdiction over Plaintiff's case.
Title VII and the CSRA provide the exclusive judicial remedy for claims of federal employment discrimination. See Brown v. Gen. Serv. Admin., 425 U.S. 820, 8305 (1976) (holding that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment"); Ayrault v. Pena, 60 F.3d 346, 348 (7th Cir. 1995) (holding that the CSRA "essentially preempted the field by superceding pre-existing remedies for all federal employees" (internal citations omitted)). Thus, this Court would have had jurisdiction to hear Plaintiff's case (provided that all other jurisdictional requirements of Title VII and the CSRA were met*fn2 ) had Plaintiff brought the case in federal court in the first instance. However, under the derivative jurisdiction rule, a federal court to which an action is removed from state court acquires jurisdiction only derivatively from the state court. See Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994); Block v. Block, 196 F.2d 930, 933 (7th Cir. 1952); McCarter v. John Hancock Center, et al., 2002 WL 31875470, at *2 (N.D. Ill. Dec. 26, 202) (citing Minnesota v. United States, 305 U.S. 382, 389 (1939)). Here, Defendant contends, because the state court in which this action was originally filed did not have jurisdiction to hear the case, this Court also has none. See Edwards, 43 F.3d at 316.
In 1986 and again in 2002, Congress amended the removal provision under 28 U.S.C. § 1441 to eliminate the derivative jurisdiction rule in cases removed under that provision. See 28 U.S.C. § 1441(f) (providing that "[t]he court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim"). The circuit courts of appeals are divided as to whether the amendment to § 1441 abrogated the derivative jurisdiction rule for all removal provisions -- including § 1442 -- or whether the rule survives for cases removed under sections other than § 1441. Compare Edwards, 43 F.3d at 316 (holding that the derivative jurisdiction rule applies in cases removed under § 1442); Palmer v. City Nat'l Bank of West Virginia, 498 F.3d 236, 245 (4th Cir. 2007) (same); In re Elko County Grand Jury, 109 F.3d 554, 556 (9th Cir. 1997) (same) with North Dakota v. Fredericks, 940 F.2d 333, 337 (8th Cir. 1991) (holding that the amendment of § 1441 "supports the complete abandonment of the derivative-jurisdiction theory, even though the words of the statute clearly do not reach this far").
The Seventh Circuit has not ruled on whether the derivative jurisdiction rule as applied to § 1442 survived Congress's 2002 amendment to § 1441. However, in view of the still-binding decision in Edwards -- which was issued after the 1986 amendment to § 1441 -- the Court applies the derivative jurisdiction rule to the instant action.
Because the state court in which Plaintiff originally filed suit lacked jurisdiction to hear Plaintiff's claims, this Court acquired no jurisdiction when Defendant removed the case under § 1442(b). See Edwards, 43 F.3d at 316. The Court therefore grants Defendant's motion  and dismisses the case without prejudice. To the extent that Plaintiff can satisfy all other jurisdictional requirements of her Title VII and CSRA claims, Plaintiff may file a new complaint in federal district court as appropriate.
For the reasons stated above, Defendant's motion to dismiss for lack of subject matter jurisdiction  is granted, and Plaintiff's case is dismissed without prejudice.