Westfall Act Certification Timing Limits Derivative Jurisdiction; FTCA § 2401(b) Is Nonjurisdictional in Removed State-Filed Actions

1. Introduction

Fiermonte v. Deonarain (2d Cir. Mar. 4, 2026) arises from a September 8, 2021 workplace electrocution at Long Island MacArthur Airport that injured plaintiff Gino Fiermonte and killed his coworker. Fiermonte sued in New York state court for negligence and later amended his complaint to add Vashti Deonarain, an FAA air traffic controller, alleging she acted within the scope of her federal employment when she failed to de-energize the area.

After Fiermonte pursued an administrative claim with the FAA and received a denial letter advising suit “in an appropriate United States District Court” within six months, he filed his amended complaint in state court within that six-month period. The United States removed the action to federal court and later filed a scope-of-employment certification and sought substitution under the Westfall Act. The district court dismissed for lack of subject-matter jurisdiction, relying on (i) the FTCA’s timing requirements and (ii) derivative jurisdiction.

The central issues on appeal were: (a) whether alleged noncompliance with FTCA § 2401(b) is jurisdictional; (b) whether derivative jurisdiction required dismissal when Westfall Act certification post-dated removal; and (c) whether filing in state court (then removal) can satisfy FTCA § 2401(b)’s six-month “action” requirement.

2. Summary of the Opinion

The Second Circuit vacated the dismissal and remanded. It held the district court erred in dismissing for lack of subject-matter jurisdiction because:

  • FTCA § 2401(b) is nonjurisdictional under United States v. Kwai Fun Wong; a limitations defect is not a jurisdictional defect.
  • Derivative jurisdiction did not apply because at the time of removal the government had not yet issued a Westfall Act certification, so the state court had not been divested of jurisdiction under 28 U.S.C. § 2679(d)(2).

The court declined to resolve in the first instance whether Fiermonte’s timely state-court filing (followed by removal) satisfied the FTCA’s six-month filing requirement, noting a circuit split, and remanded for the district court to decide that question and, if necessary, equitable tolling.

3. Analysis

3.1. Precedents Cited

(a) Sequencing and standards for jurisdictional dismissals

  • United States ex rel. Kreindler & Kreindler v. United Techs. Corp. and Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n: The panel invoked these cases for the procedural principle that courts should address Rule 12(b)(1) first because a true lack of subject-matter jurisdiction moots merits defenses. This framing mattered because the district court treated the FTCA timing issue as jurisdictional.
  • Doyle v. Midland Credit Mgmt., Inc.: Provided the standard of review—clear error for jurisdictional factfinding, de novo for legal conclusions—supporting the panel’s correction of the district court’s legal characterization of § 2401(b).

(b) Derivative jurisdiction doctrine

  • Nordlicht v. New York Tel. Co.: The panel quoted Nordlicht’s statement of derivative jurisdiction (“dismiss … if the state court from which the case was removed lacked jurisdiction”).
  • Marcus v. AT&T Corp.: Cited to note that Nordlicht was “abrogated on other grounds,” preserving Nordlicht’s relevance to derivative jurisdiction while acknowledging later doctrinal change elsewhere.
  • Carroll v. Trump: This was pivotal to the panel’s timing analysis under the Westfall Act. The Second Circuit relied on Carroll’s explanation that certification is the mechanism that triggers Westfall Act removal/substitution; without certification, “there is no removal.” Applied here, because certification came after removal, the state court had jurisdiction at the time the case left state court—defeating derivative-jurisdiction dismissal.

(c) FTCA limitations are nonjurisdictional

  • United States v. Kwai Fun Wong: The controlling authority for the proposition that 28 U.S.C. § 2401(b) is a nonjurisdictional claim-processing rule and is subject to equitable tolling. This directly undercut the district court’s jurisdictional dismissal.
  • Torres v. United States: Used as a Second Circuit application of Kwai Fun Wong, emphasizing that even when § 2401(b) bars a claim, dismissal is “substantive, not jurisdictional.”

(d) The split on whether a state-court filing can satisfy the FTCA’s six-month requirement when the case is removed

  • Houston v. U.S. Postal Serv. and Henderson v. United States: Cited for the position that commencing suit in state court does not toll or satisfy § 2401(b) because state courts lack jurisdiction over FTCA claims against the United States.
  • McGowan v. Williams and Staple v. United States: Cited for the opposing view that a timely state filing can be “timely for purposes of the Federal Tort Claims Act” once removed to federal court.

(e) Remand preference for underdeveloped alternative grounds

  • Schonfeld v. Hilliard: Supported the panel’s choice to remand rather than affirm on an alternative theory not fully litigated below, particularly where briefing in the court of appeals was “cursorily” developed.

(f) Second Circuit authority potentially affected by the Westfall Act

  • Kelley v. United States and Celestine v. Mount Vernon Neighborhood Health Cntr.: The panel flagged (without deciding) whether Kelley’s reasoning applies in the post–Westfall Act landscape, echoing Celestine’s caution that Kelley has not been “entirely superseded.”

3.2. Legal Reasoning

(a) Recharacterizing the FTCA timing issue: limitations vs. jurisdiction

The district court treated § 2401(b)’s timing requirements as depriving the court of subject-matter jurisdiction. The panel held that approach is inconsistent with United States v. Kwai Fun Wong, which makes § 2401(b) a nonjurisdictional claim-processing rule. The practical consequence is significant: the defect (if any) should be addressed under merits-based dismissal (typically Rule 12(b)(6)) and may be avoided through equitable tolling.

(b) Derivative jurisdiction turns on what jurisdiction the state court had at removal

Derivative jurisdiction can bar a removed case if the state court lacked jurisdiction at the moment of removal. The panel reasoned that, because Westfall Act divestiture hinges on the government’s certification under 28 U.S.C. § 2679(d)(2), and certification occurred weeks after removal, the state court retained jurisdiction when the case was removed. Thus, derivative jurisdiction could not justify dismissal.

In effect, the panel treated Westfall certification not as a retroactive eraser of state jurisdiction for derivative-jurisdiction purposes, but as an event whose timing matters to determining whether the state court was competent when removal occurred.

(c) The unresolved merits question: what does it mean to “commence an action” within six months?

Section 2401(b) requires filing an “action” within six months of the agency’s final denial, but is silent on whether that “action” must be filed in federal court. The panel acknowledged a circuit split and remanded for the district court to decide:

  • whether Fiermonte’s timely state-court filing (later removed) satisfies § 2401(b);
  • if not, whether equitable tolling applies under United States v. Kwai Fun Wong.

3.3. Impact

  • Constraining jurisdictional dismissals in FTCA/Westfall cases: District courts within the Second Circuit are reminded that § 2401(b) defects should not be treated as subject-matter jurisdiction defects.
  • Certification timing becomes strategically and doctrinally important: The order signals that when removal precedes Westfall certification, derivative jurisdiction may not be a viable ground for dismissal because state-court jurisdiction is assessed at removal.
  • Spotlighting a live, unresolved limitations question: By remanding rather than choosing sides, the panel underscores that litigants must brief (and district courts must analyze) whether “action” in § 2401(b) can be satisfied by a state filing later removed—an issue that may recur in cases involving late identification of federal employees and subsequent substitution.
  • Equitable tolling is central, not exceptional: The explicit remand instruction to consider equitable tolling reinforces Kwai Fun Wong’s practical effect: plaintiffs may still litigate tolling where timing is contested, rather than being jurisdictionally turned away.

4. Complex Concepts Simplified

  • FTCA (Federal Tort Claims Act): A statute allowing suits for certain torts committed by federal employees, but generally only against the United States and typically only in federal court, after first filing an administrative claim with the agency.
  • Westfall Act certification and substitution (28 U.S.C. § 2679(d)): If the Attorney General (or delegate) certifies a federal employee acted within the scope of employment, the United States is substituted as the defendant for tort claims, and the case may be removed to federal court.
  • Derivative jurisdiction: A removal doctrine under which a federal court can inherit (“derive”) the state court’s lack of jurisdiction. If the state court could not hear the claim at removal, the federal court must dismiss—even if it otherwise would have original jurisdiction.
  • Nonjurisdictional claim-processing rule: A rule that governs timing or procedure but does not limit the court’s power to hear the case. Violations can lead to dismissal on the merits and can sometimes be excused (e.g., by equitable tolling).
  • Equitable tolling: A doctrine allowing a court to extend a filing deadline when fairness requires it (for example, where a plaintiff diligently pursued rights but extraordinary circumstances prevented timely filing).

5. Conclusion

Although issued as a nonprecedential summary order, Fiermonte v. Deonarain delivers two clear doctrinal signals: (1) FTCA § 2401(b) timing issues are not subject-matter jurisdiction issues after United States v. Kwai Fun Wong; and (2) derivative jurisdiction cannot justify dismissal where the state court had jurisdiction at removal—particularly when Westfall Act certification post-dates removal. The decision also tees up, for district-court resolution, the important and recurring question whether a timely state-court filing later removed can satisfy § 2401(b)’s six-month “action” requirement, with equitable tolling as an expressly preserved backstop.