Aaron v. United States of America et al

BETTY AARON,
Plaintiff,
VS.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO. 4:25-cv-4218
UNITED STATES OF AMERICA, et al. ,
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Defendants.
ORDER
Before the Court is Plaintiff's Motion to Remand and Motion for Sanctions (Doc. No. 5) .
Defendant United States of America responded (Doc. No. 8), and Plaintiff replied and filed
supplemental briefing (Doc. Nos. 9, 15). The United States of America also filed its Motion to
Dismiss (Doc. No. 10) , to which Plaintiff responded (Doc. No. 13) , and the United States then
replied (Doc. No. 16). For the following reasons, Plaintiff's Motion to Remand and Motion for
Sanctions is DENIED, and the United States' Motion to Dismiss is GRANTED. This case is
DISMISSED without prejudice.
I. 	BACKGROUND
Plaintiff Betty Aaron 	("Aaron" 	or "Plaintiff'), individually 	as 	the 	wrongful 	death
beneficiary and as surviving spouse of Earl Aaron, filed a civil action against the United States of
America (the "Government"), numerous employees of the United States Department of Veterans
Affairs, and other affiliated entities in the 133rd Judicial District Court of Harris County, Texas.
(Doc. No. 1-2 at 2; Doc. No. 1 at 1) . Her state-court Petition asserts negligence claims under the
Federal Tort Claims Act ("FTCA") arising out of the medical care provided to her late husband,
United States District Court
Southern District of Texas
ENTERED
January 12, 2026
Nathan Ochsner, Clerk
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Earl Aaron, at the Michael E. DeBakey Department of Veterans Affairs Medical Center ("VAMC")
in Houston, Texas. (Id. at 8-11 ). She filed this suit in state court on September 7, 2023 . (Id. at 2).
Subsequently, the United States Attorney for the Southern District of Texas certified that
the individual defendants were acting in the scope of their employment and Defendants moved to
dismiss the Plaintiff's claims in state court, due to federal courts having exclusive jurisdiction over
claims arising under the FTCA. (Doc. No. 1 at 2). The state court initially dismissed the case but
subsequently set aside that dismissal because Plaintiff did not have notice or an opportunity to
respond to the motion to dismiss. (Doc. No. 5 at 1) . On September 5, 2025, the United States of
America removed the case to this Court pursuant to section 2679(d)(2) of the FTCA. (Doc. No. 1
at 1) . Subsequently, the United States, by operation of law, was substituted for the individual
federal-employee Defendants with respect to Plaintiff's claims. (Doc. No. 2). Aaron now moves
to remand the case back to state court based on multiple alleged procedural and jurisdictional
defects. (Doc. No. 5 at 1). The Government, instead, moves to dismiss this case arguing that this
Court lacks jurisdiction to hear it. (Doc. No. 10 at 3-4).
II. LEGALSTANDARDS
A. Motion to Remand
Federal courts have limited jurisdiction, so any doubts as to whether federal jurisdiction is
proper are resolved against federal jurisdiction. Acuna v. Brown & Root, Inc. , 200 F.3d 335 , 339
(5th Cir. 2000). Accordingly, the removing party bears the burden of establishing that a state-court
suit is removable to federal court. Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365
(5th Cir. 1995). When evaluating a motion to remand, all factual allegations are considered in the
light most favorable to the plaintiff, and any contested fact issues are resolved for the plaintiff.
Guillory v. PPG Indus., Inc., 434 F.3d 303 , 308 (5th Cir. 2005). Any doubts about the propriety of
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removal are to be resolved in favor of remand. Acuna, 200 F.3d at 339. "Any ambiguities are
construed against removal because the removal statute should be strictly construed in favor of
remand." Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002).
A defendant may typically remove a civil action filed in state court to federal court if the
federal court would have had original subject matter jurisdiction over the case. 28 U.S.C.
§ 1441 (a). To determine whether jurisdiction is present for removal, courts "consider the claims in
the state court petition as they existed at the time of removal." Manguno, 276 F.3d at 723. An
action may be removed under 28 U.S.C. § 1332 if the parties are completely diverse and the
"amount in controversy is greater than $75,000 exclusive of interests and costs." Allen v. Walmart
Stores, L.L. C., 907 F.3d 170, 183 (5th Cir. 2018).
B. Federal Rule of Civil Procedure 12(b )(1)
Federal courts are courts of limited jurisdiction and must have statutory or constitutional
power to adjudicate a claim. Home Builders Ass 'n of Miss ., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998). A federal court has original jurisdiction to hear a suit when it is asked to
adjudicate a case or controversy that arises under federal-question or diversity jurisdiction. U.S.
CONST. , art. III, § 2, cl. 1; 28 U.S .C. §§ 1331-32. Whether a federal court has jurisdiction must
"be established as a threshold matter" and "is inflexible and without exception." Webb v. Davis,
940 F.3d 892, 896 (5th Cir. 2019) (quoting Steel Co . v. Citizens for a Better Envi, 523 U.S . 83 ,
94-95 (1998)). A Rule 12(b)(l) motion to dismiss allows a party to challenge the exercise of the
Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(l). In analyzing a motion to dismiss under
Rule 12(b)(l), a court may consider: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts or evidence in the record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts . Ramming v. United States, 281 F.3d 158 , 161 (5th Cir.
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2001 ). Plaintiff, as the party asserting jurisdiction, bears the burden of proof to defeat a Rule
12(b)( 1) motion to dismiss. Id.
III.ANALYSIS
A. Plaintiff's Motion to Remand and Motion for Sanctions (Doc. No. 5)
To begin, the United States cannot be sued without its consent. United States v. Mitchell,
445 U. S. 535, 538 (1980). Only the sovereign can waive sovereign immunity. United States v.
Kubrick, 444 U.S. 111 , 117-18 (1979). The FTCA, as amended by the Westfall Act, is the exclusive
waiver of so vereign immunity for actions sounding in tort against the United States, its agencies,
and employees acting within their official capacity. 28 U.S.C. §§ 1346(b), 2679; In re Supreme
B eefProcessors, Inc., 468 F.3d 248, 252 (5th Cir. 2006). The FTCA provides a vehicle for plaintiffs
to sue the United States government for money damages for injury or loss of property caused by
the negligence of a federal employee acting within the course and scope of his or her employment.
See 28 U.S.C. § 1346(b).
Here, Plaintiff seeks remand of her FTCA claims back to state court. Plaintiff presents three
arguments for remand in her motion. First, she argues that the Government's removal was untimely
under 28. U.S.C. § 1446(b) because the notice of removal was filed more than 30 days after it was
served. (Doc. No. 5 at 2). Despite this, the Government's removal was, in fact, timely because this
case's removal is governed by the FTCA time restrictions for removal, rather than the general
removal statute. Mclaurin v. United States, 392 F.3d 774, 778-79 (5th Cir. 2004).
Section 2679 of the FTCA provides that a suit against the United States is the exclusive
remedy for damages for injury or loss of property "resulting from the negligent or wrongful
conduct of any employee of the Government while acting within the scope of his office or
employment." 28 U.S.C. § 2679(b)(l). Once the Government is notified of a suit against an
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employee of the Government, the Attorney General shall certify that the defendant employee was
"acting within the scope of his office or employment at the time of the incident out of which the
claim arose." § 2679(c)-(d)(l). After the Attorney General makes that certification, "any civil
action . .. commenced upon such claim in a [s]tate court shall be removed without bond at any
time before trial . ... " § 2679(d)(2) (emphasis added).
Here, the United States Attorney for the Southern District of Texas certified on March 25 ,
2024, that all Defendants named in the state-court suit "were acting within the scope of their duties
while treating U.S. Veteran Earl Aaron at the Michael DeBakey VA Medical Center." (Doc. No. 1-
3 at 2-3). The Government then removed the case before trial, complying with§ 2679(d)(2 ). Since
§ 2679( d)(2) allows the Government to remove " at any time before trial," the general removal
statute's 30-day deadline for removal does not apply to this case. See Mclaurin , 392 F.3d at 780-
81. In fact, the Fifth Circuit has held that "remand is not even permitted once the government
certifies the scope of employment and removes the suit under Section 2679( d)(2)." Id. at 781 n.27
(citing Garcia v. United States, 88 F.3d 318,322, 324 (5th Cir. 1996)).
Next, Plaintiff argues the Government's removal was procedurally defective because it
failed to serve Plaintiff's counsel with a copy of the notice ofremoval. (Doc. No. 5 at 2). In support
of her argument, Plaintiff simply states that the Government's counsel informed Plaintiff's counsel
via telephone of his intent to file the notice of removal and that he would mail a copy, but that
Plaintiff's counsel never received the notice. (Id.) .
According to Federal Rule of Civil Procedure 5(b)(2)(C), service can be made by mailing
a paper to a person's last known address. Fed. R. Civ. P. 5(b)(2)(C). In that case, "service is
complete upon mailing." Id. Per the certificate of service accompanying the Government's notice
of removal, counsel for the Government certified that the notice of removal was served by certified
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mail, return receipt requested to Plaintiff's counsel of record, Angela Aaron. (Doc. No. 1 at 5). The
Go vernment's counsel also "advised Ms. Aaron by phone that this notice of removal was being
filed. " (Id.). The Government also submitted the Certified Mail receipt and tracking status
alongside its response to the Motion to Remand, showing that the notice was delivered and pickup
up by an individual at the post office. (Doc. No. 8-2 at 2- 3). As such, Defendant properly served
the notice of remov al in accordance with the Federal Rules of Civil Procedure.
Plaintiff's final argument for remand is that the Attorney General 's Westfall Certification
is "overbroad, factually incorrect and not legally binding." (Doc. No. 5 at 2). The Westfall Act
provides that, upon certification by the United States that a government employee was acting
within the scope of their employment at the time of the allegedly tortious act, the United States
may remove the action to federal court and substitute itself as the defendant in the suit. 28 U. S.C.
§ 2679(d)(2). For purposes of removal, the certification conclusively establishes that the employee
was acting within the scope of their employment. Gutierre z de Martinez v. Lamag na , 515 U.S.
417, 432 (1995). The Supreme Court has held that "district courts [have] no authority to return
cases to state courts on the ground that the [United States' ] certification was unwarranted." Os bo rn
v. 	Haley, 549 U.S. 225 , 227 (2007). While Lamagna permits judicial review of scope of
employment certifications, it does 	so only for purposes 	of testing the appropriateness of
substituting the United States as a defendant in the lawsuit, not for remand of the case. Lamagna,
515 U.S. at 432.
Here, the United States Attorney for the Southern District of Texas certified that all
defendants were acting within the scope of their federal employment at the time of the underlying
events. (Doc. No. 1-3 at 2-3) . Even if the Court subsequently determined that this certification is
incorrect, it has no authority to return this case to state court like Plaintiff requests. Osborn, 549
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U.S. at 227. Plaintiff attempts to challenge the certification for purposes of remand, not for the
purpose of determining whether it was appropriate for the United States to substitute in as
defendant in the case. This is an improper challenge, and this Court has no authority to return this
case to state court based upon those grounds. Id.
For these reasons, Plaintiff's Motion to Remand and Motion for Sanctions (Doc. No. 5) is
DENIED.
B. The Government's 12(b)(l) Motion to Dismiss
The Government also filed its Motion to Dismiss in which it argues that this Court lacks
jurisdiction over this case based on the doctrine of derivative jurisdiction. (Doc. No. 10 at 3).
Plaintiff does not address the Government's arguments for dismissal in her response. Instead, she
insists the Court must first resolve her Motion for Remand. (Doc. No. 13 at 1-2).
The doctrine of derivative jurisdiction provides that "when a case is removed from state to
federal court, the jurisdiction of the federal court is derived from the state court's jurisdiction."
Lopez v. Sentrillon Corp., 749 F.3d 347, 350 (5th Cir. 2014). " If the state court did not have
jurisdiction to hear the case, the federal court does not acquire jurisdiction-even if the federal
court would have had jurisdiction, if the suit were originally brought in federal court." Colonial
Cnty. Mut. Ins. Co . v. United States, No. SA-15-CV-917-XR, 2015 WL 7454698, at *2 (W.D. Tex .
Nov. 23 , 2015). While Congress has abolished the doctrine of derivative jurisdiction for cases
removed under 28 U.S.C. § 1441(e), the Fifth Circuit has held that this abrogation does not extend
to removals under 28 U.S.C. § 1442. Lopez, 749 F.3d at 351.
Since only federal courts have subject matter jurisdiction in an FTCA case, when Plaintiff
filed her suit in District Court in Harris County, Texas, that court did not have subject matter
jurisdiction over the case. See id. at 350. When the Government removed the case to federal court,
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it did so under 28. U.S .C. § 1442. (Doc. No. 1 at 1) ("Pursuant to 28 U.S.C. § 1446(a), § 1442, and
§ 2679(d) the United States of America, through the undersigned Assistant U.S. Attorne y, and on
behalf of itself and the named federal employees acting within the scope of their employment, files
this Notice of Removal . ... "). Asa result, the doctrine of derivative jurisdiction applies. Since the
state court did not have subject matter jurisdiction, this Court does not have subject matter
jurisdiction either-even though it would have if Plaintiff had originally filed her lawsuit in this
Court. As a result, the Court has no choice but to dismiss the case without prejudice. See Colonial
Cn ty., 2015 WL 7454698 , at *2 (finding the same); Terry v. United States Postal Serv., No. 3:24-
CV-0799-S, 2024 WL 2331764, at *2 (N.D. Tex. May 21 , 2024) (finding the same).
This Court recognizes that after dismissal, Plaintiff most likely will simply refile her case
here in federal court, where it already sits today after removal. This process seems unnecessary
and circular, but nevertheless, the Court's hands are tied and has no choice but to dismiss the case
under the law as it currently stands. 1
1 "The derivative-jurisdiction principle has been heavily criticized largely because it produced the anomalous result
that a case within the exclusive jurisdiction of the federal courts could not be removed to a federal court." 14C WRI GHT
& MI LLER'S FEDERAL PRA CT ICE & PR OCE DURE, § 3721.1 (4th ed. 2008) (internal citation omitted); see Note, Shelby
Mohr, A Pro ce dural Rollercoaster: A Case f or Amendment of S ec tion 1442 to Abrogate th e Doctrine of Derivative
Juris di ction, 58 IND. L. RE V. (Jan. 20, 2025) available at http s: //indianalawreview.com /2025/ 01 / 20 /a-procedural-
ro 11 ercoaster-a-case-for-am endm ent-of-secti on-144 2-to-abrogate-th e-doctri n e-of-deri vati ve-j urisd icti on/; David 	D.
Siegel, Derivative Jurisdiction Doctrin e: Federal Court with Exclusive Jurisdiction of Claim Gets No Jurisdiction
Up on Removal if State Court had No Jurisdiction, SI EGEL'S PRA C. REV ., Mar. 2001 , at 1, 1.
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IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Remand (Doc. No. 5) is DENIED and
Defendant United States of America's Motion to Dismiss (Doc. No. I 0) is GRANTED. Plaintiff's
Motion to Stay Defendant's Motion to Dismiss (Doc. No. 12) is DENIED as moot. This case is
DISMISSED without prejudice.
It is so ordered.
1'---Signed on this the --1k_ day of January, 2026.
Andrew S. Hanen ........
United States District Judge
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