Sonia L. Hendy v. Marion N. Bello

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1060
SONIA L. HENDY,
Plaintiff – Appellant,
v.
MARION N. BELLO,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:12-cv-02289-PJM)
Submitted: January 17, 2013 Decided: February 6, 2014
Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy F. Maloney, Matthew M. Bryant, JOSEPH, GREENWALD &
LAAKE, P.A., Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Neil R.
White, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This appeal arises out of an altercation between Postal
Service employees Sonia Hendy and Marion Bello at the Westlake
Post Office in Bethesda, Maryland, where they both worked. The
fracas occurred on July 25, 2012, one day after Bello, Hendy’s
direct supervisor, issued Hendy a “Notice of No-Time Served (7)
Day Suspension.”
On July 26, 2012, in Maryland state court, Hendy filed a
petition for a peace order restraining Bello from contacting
Hendy or going to their mutual workplace. That court issued
interim and temporary peace orders ex parte. 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. The
District of Maryland then dismissed the action for lack of
subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) on the ground of sovereign immunity. Hendy
appeals.
I.
On appeal, Bello argues that the case is no longer
justiciable because it is moot, as Hendy can no longer obtain
relief for the July 25, 2012, incident under Maryland law. This
argument, however, is based on a misreading of the Maryland Code
of Courts & Judicial Procedure. Md. Code Ann., Cts. & Jud.

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Proc. § 3-1503(a) states that a petitioner may file an action
for a peace order for any qualifying act that “occurred within
30 days before the filing of the petition.” Hendy did just
that. The statute also sets a timeframe for the final peace
order hearing, but notes that the proceeding may be “continued
for good cause.” Id. § 3-1505(b)(1)(ii). Here, the state court
case was dismissed only because it was removed to federal court;
if removal were improper, the statute does not bar Maryland
courts from resuming jurisdiction and Hendy from obtaining a
peace order. Because this case is based on Hendy’s original
timely petition, it does not matter that Hendy is time-barred
from filing for a new peace order based on the original July 25,
2012, altercation. It is similarly immaterial that, had a peace
order been granted in 2012, it would have already expired. See
id. § 3-1505(f); § 3-1506(a)(2). We therefore reject Bello’s
assertion of mootness and turn to the merits.
II.
Hendy challenges the propriety of removal under 28 U.S.C.
§ 1442(a)(1) and Mesa v. California, 489 U.S. 121 (1989).
Section 1442(a)(1) allows federal officers or those “acting
under” any “agency” or “officer” of the United States to remove
to federal court suits brought against them in state court, when
they were acting “in an official or individual capacity, for or
relating to any act under color of such office.” We find that

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these requirements have been met. As a postal worker, Bello
acted under an “officer” of the United States, Mesa, 489 U.S. at
125, and the dispute related to a federal workplace disciplinary
action, which is “closely connected with[] the performance of
[her] official functions,” Jefferson Cnty. v. Acker, 527 U.S.
423, 447 (1999). We also find that Mesa’s colorable federal
defense requirement was met at the time the district court
dismissed the action. See North Carolina v. Cisneros, 947 F.2d
1135, 1139 (4th Cir. 1991).
III.
Next, Hendy challenges the district court’s dismissal for
lack of subject-matter jurisdiction. We review de novo a
dismissal under Fed. R. Civ. P. 12(b)(1). Vulcan Materials Co.
v. Massiah, 645 F.3d 249, 261 (4th Cir. 2011).
The government of the United States enjoys sovereign
immunity from suit unless it expressly waives such immunity.
United States v. McLemore, 45 U.S. 286, 288 (1846). A suit
against a government officer in her official capacity is really
“a suit against the official’s office,” and so officers acting
within their authority generally also receive sovereign
immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989); see also Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 687 (1949). Therefore, we must ask whether
Congress has waived sovereign immunity on these facts. There

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are two possible sources of waiver: The Federal Tort Claims Act
(“FTCA”), 62 Stat. 982 (1948), codified at 28 U.S.C. §§ 1346(b),
2671-2680, and the Postal Reorganization Act of 1970 (“PRA”),
Pub. L. 91-375, 84 Stat. 722, codified at 39 U.S.C. § 101 et
seq. Neither is applicable here.
The FTCA waives sovereign immunity for tortious acts of
federal employees working in the scope of their federal
employment, including post office employees. 28 U.S.C.
§ 1346(b)(1); 39 U.S.C. § 409(c). However, the FTCA by its
plain terms applies only to suits seeking money damages, and
Hendy’s does not. 28 U.S.C. § 1346(b).
On the other hand, the PRA authorizes the Postal Service
“to sue and be sued in its official name.” See 39 U.S.C.
§ 401(1). Although “sue and be sued” clauses are generally
liberally construed, they are not absolute waivers of sovereign
immunity. See Loeffler v. Frank, 486 U.S. 549, 554–55 (1988)
(quoting Fed. Housing Administration v. Burr, 309 U.S. 242, 245
(1940)). “Sue and be sued” clauses do not waive sovereign
immunity in several circumstances: (1) for types of suits that
are “not consistent with the statutory or constitutional
scheme”; (2) when “necessary to avoid grave interference with
the performance of a governmental function”; or (3) for other
reasons that demonstrate congressional intent to apply the “sue
and be sued” clause narrowly. Id. The first two exceptions

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apply here: Hendy seeks a state-law injunction that would
prohibit a supervisor at the Westlake Post Office from coming to
her federal workplace. It is inconsistent with the principle of
federal supremacy to allow such interference with the
performance of a federal employee’s duties. Moreover, in
prohibiting a federal employee from entering her federal
workplace, waiving sovereign immunity would disturb the federal
agency’s internal functions. This could not have been
Congress’s intent.
Finally, we also note that, even if we construed the “sue
and be sued” clause to waive immunity for this type of claim,
“[a]n absence of immunity does not result in liability if the
substantive law in question is not intended to reach the federal
entity.” U.S. Postal Service v. Flamingo Indus., 540 U.S. 736,
744 (2004). By its plain terms, the Maryland statutory scheme
does not apply to the post office--or any other governmental or
business entity. Md. Code Ann., Cts. & Jud. Proc. § 3-1501(h)
(noting that a peace order may be filed against an “individual”
who committed an enumerated act).
IV.
We therefore affirm the district court’s dismissal of this
suit for lack of subject-matter jurisdiction on sovereign-
immunity grounds.
AFFIRMED

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