Larry Cox v. Usda

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2015
• Docket: 13-15225
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 13 2015

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY L. COX and RENEE M. COX, No. 13-15225

Plaintiffs - Appellees, D.C. No. 3:11-cv-00454-RCJ- WGC v.

UNITED STATES DEPARTMENT OF MEMORANDUM* AGRICULTURE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted July 6, 2015** San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

Plaintiffs-Appellees Larry and Renee Cox defaulted on a rural housing loan

granted by Defendant-Appellee U.S. Department of Agriculture (“USDA”). When

USDA initiated foreclosure proceedings, the Coxes elected to participate in

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Nevada’s Foreclosure Mediation Program. The mediator found that USDA did not

participate in mediation in good faith, chiefly because USDA regulations prevented

the agency from entertaining the loan modifications that the Coxes requested. The

Coxes petitioned in state court for an order modifying their loan.

USDA removed the petition to the District of Nevada under 28 U.S.C.

§ 1442(a)(1) and moved to dismiss pursuant to sovereign immunity and other

doctrines. The district court held that it lacked subject matter jurisdiction and

remanded to state court. USDA now appeals, arguing that remand was improper

because USDA enjoys sovereign immunity from suit in Nevada state courts. We

have jurisdiction under 28 U.S.C. § 1291, and reverse the district court’s order

remanding the petition to state court.

Because the record contains no evidence that USDA waived its sovereign

immunity to the Coxes’ petition, the Nevada state court lacked jurisdiction over the

action. See Neb. ex rel. Dep’t of Soc. Servs. v. Bentson, 146 F.3d 676, 679–80 (9th

Cir. 1998). Accordingly, under the derivative jurisdiction doctrine, the district

court also lacks jurisdiction over the petition on removal. See In re Elko Cnty.

Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997). The district court therefore was

bound to dismiss the petition rather than remand to state court. See id.

Because we conclude that the district court erred in failing to dismiss the

2 petition for lack of jurisdiction, we do not reach the other issues raised on appeal.

The district court’s remand order is REVERSED and the action

REMANDED with instructions that the district court dismiss the Coxes’ petition

for lack of jurisdiction.