United States District Court, S.D. Indiana, Indianapolis Division
THE BRENT ALLEN SWALLERS ESTATE BY EXECUTOR BRENT-ALLEN, Plaintiff,
THOMAS ARVIN, Defendant.
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER
JURISDICTION AND OTHER MOTIONS
EVANS BARKER, JUDGE.
before the Court is Defendant Thomas Arvin's
(“Arvin”) motion to dismiss for lack of
subject-matter jurisdiction. Dkt. 3. See Fed.R.Civ.P.
12(b)(1). For the reasons explained below, the motion is
“is a Special Deputy United States Marshal, who serves
as a Federal Bureau of Investigation (‘FBI') Task
Force Officer.” Dkt. 1 ¶ 1. In 2016, Arvin
executed a search warrant at the home of Plaintiff pro se
Brent Swallers (“Swallers”). (We disregard for
the moment Swallers's styling himself as the executor of
an estate bearing his name. See Dkt. 9.) On November 28,
2017, Swallers filed an action in Wayne Township Small Claims
Court, Marion County, Indiana, alleging that Arvin had
unlawfully seized from him ammunition and ammunition boxes
valued at $1, 000, and seeking their return as well as $8,
000 damages. Dkt. 1 Ex. 1, at 1. Arvin removed the action to
this Court on December 5, 2017, invoking the federal-officer
removal statute, 28 U.S.C. 1442(a)(1).
argument for dismissal proceeds in two steps. First, Arvin
argues that “[i]t 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). And
Swallers's complaint furnishes “[no] basis for any
waiver of sovereign immunity that would subject individual
employees, agents, or officers of the United States to a
civil suit for the return of property seized [under] a
federal warrant and held by the FBI in state court.”
Br. Supp. 2. Therefore, according to Arvin, the state court
lacked jurisdiction over Swallers's case.
Arvin argues that, under the doctrine of derivative
jurisdiction, “‘where the state court lacks
jurisdiction of the subject matter or of the parties, the
federal court acquires none, although in a like suit
originally brought in federal court it would have had
jurisdiction.'” Rodas v. Seidlin, 656 F.3d
610, 615 (7th Cir. 2011) (alteration omitted) (quoting
Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316
(7th Cir. 1994)). Therefore, so long as the motion is made
before entry of final judgment, Abaju v. Harvey, No.
1:18-cv-01234-JMS-MJD, 2018 WL 3586588, at *5 (S.D. Ind. July
26, 2018) (Magnus-Stinson, C.J.) (discussing Rodas, 656 F.3d
at 619-25), the case must be dismissed for lack of
conclusion advanced by Arvin would be correct if its
predicates were. But Swallers did not sue the United States;
he sued Arvin. The United States is a sovereign and enjoys
sovereign immunity; Arvin personally is not and does not. See
Kentucky v. Graham, 473 U.S. 159, 166-67 (1985);
Edelman v. Jordan, 415 U.S. 651, 668 (1974);
Okoro v. Callaghan, 324 F.3d 488, 491 (7th Cir.
Westfall Act, codified in relevant part at 28 U.S.C. §
2679, “immunizes federal employees acting within the
scope of their employment from an action for damages through
the device of substituting the United States as the party
defendant, so long as the suit is not for a constitutional
violation or otherwise statutorily authorized against a
government employee.” Panther Brands, LLC v. Indy
Racing League, LLC, 827 F.3d 586, 590-91 (7th Cir.
2016). And federal district courts' jurisdiction over
tort claims against the United States is exclusive of the
state courts'. 28 U.S.C. § 1346(b)(1). But the
Westfall Act is not self-executing. Only “[o]nce the
Attorney General certifies that the named employee was acting
within the scope of his office or employment, [does] federal
jurisdiction become exclusive.” Panther Brands, 827
F.3d at 591 (citing Osborn v. Haley, 549 U.S. 225,
242, 243, (2007)).
certification has been made in this case, neither here nor in
the state court. Arvin remains the only named defendant; the
United States has not been substituted. Thus, the operation
of the Westfall Act and 28 U.S.C. § 1346 did not divest
the state court of jurisdiction over Swallers's suit, and
there is accordingly no existing defect in our jurisdiction.
closing, we note that we have assumed Swallers's action
to be one for conversion or replevin under state law. It is
only in such cases where state law supplies the rule of
decision, that is, where “the United States
‘would be liable to the claimant' as ‘a
private person' ‘in accordance with the law of the
place where the act or omission occurred[, ]'” that
the statutory machinery described here is engaged. FDIC v.
Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. §
1346(b)). Swallers's tardy and largely incomprehensible
response to Arvin's motion suggests, however, that his is
a Bivens action for violations of the Fourth Amendment to the
Constitution. If that is so, there is still no sovereign
immunity problem, Okoro, 324 F.3d at 491, and Arvin has not
challenged the state court's jurisdiction to hear and
decide Bivens actions.
reasons explained above, Arvin's motion to dismiss [Dkt.
3] is DENIED. Swallers's pending motions [Dkt. 11 and