Darryle C. Hardnett v. Scott Bessent, Secretary Department of the Treasury, et al.

• Court: District Court, S.D. California
• Decided: March 23, 2026
• Docket: 3:25-cv-02212
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DARRYLE C. HARDNETT, Case No.: 25-CV-2212 JLS (JLB)

11 Plaintiff, ORDER GRANTING DEFENDANTS’ 12 v. MOTION TO DISMISS

13 SCOTT BESSENT, Secretary Department (ECF No. 3) of the Treasury, et al., 14 Defendants. 15 16 17 18 Presently before the Court is Defendants Scott Bessent’s and Department of the 19 Treasury’s (“Defendants”) Motion to Dismiss Complaint (“Mot.,” ECF No. 3). Also 20 before the Court are Plaintiff Darryle C. Hardnett’s Opposition to Defendants’ Motion to 21 Dismiss Complaint (“Opp’n,” ECF No. 5) and Defendants’ Reply in Support of Motion to 22 Dismiss Complaint (“Reply,” ECF No. 6). Having carefully reviewed Plaintiff’s 23 Complaint (“Compl.,” ECF No. 1-2), the Parties’ arguments, and the law, the Court 24 GRANTS the Motion and DISMISSES WITH PREJUDICE Plaintiff’s Complaint. 25 / / / 26 / / / 27 / / / 28 / / / 1 BACKGROUND 2 On July 14, 2025, pro se Plaintiff filed this action in the Superior Court of California, 3 County of San Diego against “Scott Besent,1 Secretary, Department of the Treasury 4 (Internal Revenue Service).”2 Compl. at 6. Plaintiff alleges that Defendants wrongfully 5 terminated him and subjected him to race discrimination and harassment in violation of 42 6 U.S.C. § 1981. Id. ¶¶ 3, 5–7. Plaintiff states that during his employment with the Internal 7 Revenue Service (“IRS) he “was subjected to repeated acts of racial discrimination and 8 was treated less favorably than non-Black employees.” Id. at 6. Plaintiff further alleges 9 that he was wrongfully terminated “after being notified via email of successfully 10 completing Revenue Agent training,” allegedly making Plaintiff “the first Revenue Agent 11 to be terminated immediately following training.” Id. 12 On August 27, 2025, Defendants removed the action to federal court “pursuant to 13 the federal officer and federal agency removal statute, 28 U.S.C. § 1442(a)(1).” Mot. at 3; 14 see ECF No. 1 (“Not. of Removal”). On September 3, 2025, Defendants filed the present 15 Motion arguing lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Mot. 16 at 3. 17 LEGAL STANDARD 18 Federal Rule of Civil Procedure 12(b)(1) allows a party to file a motion to dismiss a 19 case for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When a party files 20 such a motion, “there is a presumption of a lack of jurisdiction until the plaintiff 21 affirmatively proves otherwise.” Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 22 704, 706 (D. Ariz. 1996). In a facial attack on subject matter jurisdiction, such as the one 23 here, courts must consider the allegations of the complaint to be true and draw all 24 reasonable inferences in the plaintiff’s favor. See Wolfe v. Strankman, 392 F.3d 358, 362 25

26 1 The Court notes that Plaintiff misspelled Defendant Scott Bessent’s name in his Complaint. 27 2 It is unclear whether Plaintiff intended to name the Department of the Treasury as a Defendant. 28 Construing pro se Plaintiff’s Complaint liberally, the Court assumes Plaintiff intended to name both Scott 1 (9th Cir. 2004), overruled on other grounds by, Munoz v. Superior Ct. of L.A. Cnty., 91 2 F.4th 977 (9th Cir. 2004). Additionally, courts have a duty to liberally construe a pro se 3 litigant’s pleadings. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 4 1988). 5 DISCUSSION 6 Defendants argue they are immune from suit under sovereign immunity. Mot. at 4. 7 Thus, Defendants conclude that the Court lacks subject matter jurisdiction under the 8 doctrine of derivative jurisdiction. Id. at 4–9. 9 I. Sovereign Immunity 10 When a party sues the federal government, the law on which such action is based 11 must contain an explicit waiver of sovereign immunity for subject matter jurisdiction to 12 exist, as “[i]t is axiomatic that the United States may not be sued without its consent and 13 that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 14 463 U.S. 206, 212 (1983). A waiver of sovereign immunity must be “‘unequivocally 15 expressed’ in the text of a relevant statute[,]” and “‘[a]ny ambiguities in the statutory 16 language are to be construed in favor of immunity.’” Daniel v. Nat’l Park Serv., 891 F.3d 17 762, 768–69 (9th Cir. 2018) (first quoting United States v. Bormes, 568 U.S. 6, 9–10 18 (2012); then quoting FAA v. Cooper, 566 U.S. 284, 290 (2012)). “In sovereign immunity 19 analysis, any lawsuit against an agency of the United States or against an officer of the 20 United States in his or her official capacity is considered an action against the United 21 States.” Balser v. Dep’t of Justice, 327 F.3d 903, 907 (9th Cir. 2003) (citing Sierra Club 22 v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001)). “A party bringing a cause of action against 23 the federal government bears the burden of showing an unequivocal waiver of immunity.” 24 Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987) (citing Holloman v. Watt, 708 25 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984)). 26 Here, Plaintiff names Scott Bessent, in his official capacity as Secretary of the 27 Department of the Treasury, and the Department of the Treasury as Defendants. See 28 Compl. at 2. Therefore, Plaintiff bears the burden of showing an unequivocal waiver of 1 sovereign immunity under 42 U.S.C. § 1981. See Baker, 817 F.2d at 562. Plaintiff does 2 not address Defendants’ arguments related to sovereign immunity in his Complaint or 3 Opposition. See generally Compl.; Opp’n. Therefore, Plaintiff has failed to identify any 4 explicit waiver of sovereign immunity. See Eiselin v. USCIS San Diego, 23-CV-1961 JLS 5 (AHG), 2024 WL 733644, at *3 (S.D. Cal. Feb. 22, 2024) (finding no waiver of sovereign 6 immunity where “[p]laintiff’s filings [did] not identify a statutory waiver of sovereign 7 immunity, nor discuss sovereign immunity at all”). Due to Plaintiff’s pro se status, the 8 Court will address whether claims under § 1981 are barred by sovereign immunity. 9 “Section 1981 gives all citizens of the United States ‘the same right in every State 10 or Territory to make and enforce contracts . . . as is enjoyed by white citizens.’” Dears v. 11 Sec’y of Health and Hum. Servs., No. 20-CV-12-BAS-AGS, 2020 WL 1062941, at *3 (S.D. 12 Cal. Mar. 4, 2020) (quoting 42 U.S.C. § 1981). “For claims arising under 42 U.S.C. § 1983 13 and § 1985, the Ninth Circuit found ‘no evidence in either statute that Congress intended 14 to subject federal agencies to § 1983 and § 1985 liability.’” Id. (quoting Jachetta v. United 15 States, 653 F.3d 898, 908 (9th Cir. 2011)). The Ninth Circuit has yet to address directly 16 whether § 1981 claims are barred by sovereign immunity. Id. However, the Fifth, Seventh, 17 and Eleventh Circuits have “held that sovereign immunity bars § 1981 claims as well.” 18 Gottschalk v. City and Cnty. of San Francisco, 964 F. Supp. 2d 1147, 1162 (N.D. Cal. Aug. 19 12, 2013) (dismissing §§ 1981, 1983, and 1985 claims against federal defendants with 20 prejudice). The Court follows other courts in concluding that the “Ninth Circuit has used 21 similar reasoning in rejecting § 1983 claims against federal government actors, it seems 22 likely that it would follow other circuits in finding § 1981 inapplicable to federal 23 government actors.”3 Id.; see also Dears, 2020 WL 1062941, at *3 (dismissing claim under 24

25 3 Further, other courts “have found § 1981 claims inapplicable to federal actors because they are acting 26 not ‘under color of state law,’ as the statute states, but under color of federal law.” Gottschalk, 964 F. Supp. 2d at 1162 (first citing Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005), and then citing Davis- 27 Warren Auctioneers, J.V. v. F.D.I.C., 215 F.3d 1159, 1161 (10th Cir. 2000)); see also Magassa v. Wolf, 28 487 F. Supp. 3d 994, 1005–07 (W.D. Wash. 2020) (dismissing § 1981 claim against a federal agent acting 1 § 1981 on sovereign immunity grounds); Jean-Baptiste v. U.S. Dep’t of Justice, No. 23- 2 432 (RC), 2024 WL 1253858, at *4 (D.D.C. Mar. 25, 2024) (“There is nothing in the text 3 of Section[] 1981 . . . that suggests the United States has waived its immunity to suit under 4 these statutes. In fact, courts have expressly held the opposite.”). 5 In conclusion, because § 1981 does not explicitly waive the federal government’s 6 sovereign immunity, the Court lacks subject matter jurisdiction. 7 II. Derivative Jurisdiction 8 This action was removed by Defendants from state court pursuant to 28 U.S.C. § 9 1442(a)(1)—resulting in the Court’s jurisdiction being derivative of the state court’s 10 jurisdiction. See Not. of Removal; In re Elko Grand Jury, 109 F.3d 554, 555 (9th Cir. 11 1997) (“[W]e note that because this case was removed from state court pursuant to § 1442, 12 our jurisdiction is derivative of the state court’s jurisdiction.”). “The doctrine of derivative 13 jurisdiction provides that ‘if the state court lacks jurisdiction of the subject-matter or of the 14 parties, the federal court acquires none upon removal, although it might in a like suit 15 originally brought there have had jurisdiction.’” Rubie’s LLC v. First Am. Title Co., No. 16 18-CV-1052-DAD-SKO, 2018 WL 6419674, at *3 (E.D. Cal. Dec. 6, 2018) (quoting 17 Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922)) (cleaned up). 18 “[T]he long-standing derivative jurisdiction doctrine provides that if a state court lacks 19 jurisdiction over a case, a federal court does not acquire jurisdiction on removal.” 20 Rodriguez v. United States, 788 Fed. App’x 535, 536 (9th Cir. 2019) (citing Minnesota v. 21 United States, 305 U.S. 382, 389 (1939)). 22 While Congress abolished this doctrine with respect to the general removal statute, 23 28 U.S.C. § 1441(a), the Ninth Circuit has “recently affirmed that the doctrine still applies 24 to the federal officer removal statute,” 28 U.S.C. § 1442(a)(1). Id. (citing Cox v. U.S. Dep’t 25 of Agric., 800 F.3d 1031, 1032 (9th Cir. 2015)). The Ninth Circuit in Cox held that because 26 there was no evidence of sovereign immunity waiver, the state court lacked jurisdiction 27 over the action. Cox, 800 F.3d at 1032. Because the state court lacked jurisdiction and the 28 action was removed under § 1442(a)(1), the district court also lacked jurisdiction over the 1 petition on removal under the derivative jurisdiction doctrine, and “therefore was bound to 2 dismiss the petition rather than remand to state court.” Id. (citing In re Elko Cnty. Grand 3 Jury, 109 F.3d at 555). 4 Therefore, “[a]s the state court was without jurisdiction over this case, this action 5 must be dismissed for lack of subject matter jurisdiction under the derivative jurisdiction 6 doctrine.” Eiselin, 2024 WL 733644, at *3 (first citing Cox, 800 F.3d at 1032; and then 7 citing Kleidman v. Barash, No. CV 22-610-DMG (JPRX), 2022 WL 1613019, at *2 (C.D. 8 Cal. Apr. 21, 2022), aff’d, 2023 WL 9470708 (9th Cir. July 3, 2023)).4 9 III. Leave to Amend 10 A district court should typically “not dismiss a pro se complaint without leave to 11 amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured 12 by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker 13 v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988)). But under the derivative 14 jurisdiction doctrine, “a case filed in state court over which that court lacks jurisdiction is 15 void from its very beginning.” Rubie’s LLC, 2018 WL 6419674, at *4. As a result, this 16 Court “has no jurisdiction to acquire over the case via removal.” Id. The Court thus cannot 17 grant Plaintiff leave to amend. See Thibodeaux v. U.S. Postal Serv., No. 20-CV-0651 18 W (LL), 2021 WL 242974, at *2 (S.D. Cal. Jan. 25, 2021) (denying leave to amend where 19 action was dismissed pursuant to the derivative jurisdiction doctrine); Acosta v. Kijakazi, 20 No. 22-55288, 2023 WL 3033499, at *1 (9th Cir. Apr. 21, 2023) (finding “further 21 22 4 Defendants correctly assert that even if the Court were to liberally construe Plaintiff’s Complaint as a Title VII claim, the Court still lacks jurisdiction. See, e.g., Bullock v. Napolitano, 666 F.3d 281, 284, 286 23 (4th Cir. 2012) (“Congress waived sovereign immunity for Title VII suits brought by federal employees 24 against the United States, but it explicitly provided for jurisdiction only in federal courts . . . [U]nder this doctrine of derivative jurisdiction, because the [state court] did not have subject-matter jurisdiction over 25 [plaintiff’s] Title VII claim against the Secretary, neither did the district court after the Secretary removed the action under 28 U.S.C. § 1442(a).”); Sadozai v. Def. Language Inst., No. 21-CV-1409-BLF, 2021 WL 26 4710564, at *1–2 (N.D. Cal. Oct. 7, 2021) (dismissing Title VII claim under derivative jurisdiction because a Title VII claim can only be brought in federal court); Robinson v. United States Dep’t of Health 27 & Hum. Res., No. 21-1644 (CKK), 2021 WL 4798100, at *4 (D.D.C. Oct. 14, 2021) (“The United States’s 28 waiver of sovereign immunity, therefore, does not extend to Title VII claims filed in [state court], leaving 1 ||amendment would be futile under the derivative jurisdiction doctrine,” as the “district court 2 || lacked jurisdiction’’). 3 CONCLUSION 4 In light of the foregoing, the Court GRANTS Defendant’s Motion to Dismiss (ECF 5 ||No. 3) and DISMISSES WITH PREJUDICE and WITHOUT LEAVE TO AMEND 6 || Plaintiff's Complaint (ECF No. 1-2). As this concludes the litigation in this matter, the 7 || Clerk of the Court SHALL CLOSE the file. 8 IT IS SO ORDERED. ? Dated: March 23, 2026 vk 10 (een on. Janis L. Sammartino United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28