In Bullock v. Napolitano, Willie Bullock was a former employee in the federal air marshal program and sued the Department of Homeland Security for racial discrimination under Title VII. He filed suit in North Carolina superior court and the defendant removed to federal court. The district court then granted the defendant’s motion to dismiss on sovereign immunity grounds. In a 2-1 decision (Niemeyer and Agree in the majority), the Fourth Circuit affirmed.
In 1972, Congress amended Title VII to provide that a federal employee, who has exhausted his administrative remedies, “may file a civil action as provided in section 2000e-5” against a federal department or agency. 42 U.S.C. § 2000e-16(c). This provision is a clear waiver of federal sovereign immunity. Section 2000e-5, however, only explicitly states that Title VII suits may be brought in federal court. In Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990), the Supreme Court permitted Title VII suits against private employers in state court because concurrent jurisdiction was presumed. No circuit court had addressed whether the same holds true for suits against federal agencies. The majority concluded that it did not. Because waivers of sovereign immunity have to be explicit, and section 2000e-5 only refers to federal courts, there was no waiver for suits in state court. Because the North Carolina court did not have jurisdiction, the federal court did not have jurisdiction upon removal.
In dissent, Judge Gregory argued that because Title VII waived sovereign immunity, and the Supreme Court interpreted section 2000e-5 to permit state court jurisdiction, then the waiver encompasses state court jurisdiction. Nothing in Yellow Freight limited the opinion to private employers. This logic is convincing, but Bullock is now the law of the circuit, so federal employee suits must be brought in federal court.